1 


I 


THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 


CYCLOPEDIA 

OF 


MICHIGAN   PRACTICE 


IN 


CIVIL  ACTIONS  AT  LAW  IN 
COURTS  OF  RECORD 


WITH 


COMPLETE  FORMS  UNDER  THE 
JUDICATURE  ACT 


BY 

FRED  H.  ABBOTT 

OF  THE   MICHIGAN   BAR 


VOLUME  I 


CHICAGO 
CALLAGHAN  AND  COMPANY 

1920 


Copyright, 

1920 

BY 

CALLAGHAN   & 

COMPANY 

ANNOUNCEMENT 


The  Judicature  Act  adopted  by  the  Michigan  Legislature  in 
1915  not  only  codified  the  earlier  practice  provisions,  but  made 
many  changes.  The  character  of  these  changes  has  been  such  as 
to  necessitate  a  revision  of  Abbott's  Michigan  Practice.  The  ne- 
cessity of  this  revision  has  been  availed  of  to  present  a  Cycix»- 
PEDiA  OF  Michigan  Practice  embodying  the  clear  and  thor- 
ough statement  of  the  common-law  principles  of  pleading  and 
practice  as  obtaining  in  Michigan  included  in  the  earlier  work, 
the  statutory  modifications  and  the  decisions  subsequent  to  that 
edition  and  a  valuable  collection  of  forms.  This  matter,  new 
and  old,  has  been  revised  and  rewritten,  being  treated  topically 
and  the  topics  being  thoroughly  analyzed.  To  facilitate  ready 
reference  and  to  render  every  subject  in  the  field  of  Michigan 
practice  instantly  available,  the  topics  have  been  arranged  al- 
phabetically and,  in  addition  thereto,  the  work  has  been  thor- 
oughly and  practically  indexed.  In  this  index  the  forms  in- 
cluded in  the  various  topics  are  found  under  the  head  Forms. 

With  confidence  that  the  Cyclopedia  of  Michigan  Practice 
contains  in  every  particular  a  thorough,  comprehensive,  ac- 
curate and  practical  treatment  of  the  Michigan  practice  of 
to-day,  it  is  submitted  to  the  Bench  and  Bar  of  Michigan. 

CALLAGHAN  AND  COMPANY. 

August,  1920. 


TABLE  OF  TOPICS 


VOLUME  I 


[Italics  indicate 

Abandonment,  1. 

Abatement  and  Revival,  1. 

Abbreviations,  8. 

Absconding,   8. 

Absence,  8. 

Abuse  of  Process,  9. 

Accord  and  Satisfaction,  9. 

Account,  10. 

Account  Stated,  11. 

Actions,  11. 

Address,  22. 

Adjournments,  22. 

Administrators,  22. 

Admiralty,  22. 

Admissions,  22. 

Adverse    Possession,  22. 

Advertisement,  23. 

Advice  of  Counsel,  23. 

Affidavit  of  Merits,  23. 

Affidavits,  24. 

Affirmance,  29. 

Affirmative  Defenses,  29. 

Age,  29. 

Agency,  29. 

Agreed  Case,  33. 

Agreements  and  Stipulations  Be- 
tween   Parties,  33. 

Alias  Writs,  36. 

Aliens,  36. 

Alternative  Writ,  36. 

Amendments  and  Defects  Cured 
BY  Verdict,  36. 

Amount   in  Controversy,  45. 

Animals,  45. 

Another   Action  Pending,  47. 

Answer,  48. 


cross-refer  ences'\ 
Anticipating  Defenses,  48. 
Appeals,  48. 
Appearance,  49. 
Appraisal,  54. 

Arbitration  and  Award,  54. 
Argument    of   Counsel,  68. 
Array,  68. 
Arrest,  69. 

Assault  and  Battery,  69. 
Assignments,  71. 

Assignments    for    Benefit    of    Cred- 
itors, 72. 
Assignments   of  Error,   72. 
Associations,  78. 
Assumpsit,  79. 
Attachment,  89. 
Attorney  General,  160. 
Attorneys,  161. 
Auditors,  181. 
Award,  181. 

Bail,  181. 

Bailment,  199. 

Banliruptcy,  203. 

BanTcs,   203. 

Bar,  203. 

Beasts,  203. 

Bench  Warrant,  203. 

Bids,  203. 

Bill   of    Costs,    203. 

Bill  of  Exceptions,  203. 

Bill  op  Particul.\rs,  223. 

Bills  and  Notes,  234. 

Board  of  Supervisors,  236. 

Body  Executions,  236. 

Bonds,    236. 


VI 


Table  of  Topics 


[Italics  indicate 

Books,  242. 

Boundaries,    242. 

Breach  of  Peace,  242. 

Brhiach  or  Promise  to  Mabry,  242. 

Briefs,  243. 

Brokers,  249. 

Building  and  Loan  Associations,  250. 

Buildings,  250. 

Burden  of  Proof,  250. 

I 
Ca.  Sa.,  250. 
Calendar,  250. 

Capias  ad  Respondendum,  251. 
Caption,  251. 
Card  Playing,  251. 
Carriers,  251. 
Case,  Action  on,  254. 
Case  Made,  259. 
Cattle,  269. 

Caaise  of  Action,  269. 
Cemeteries,  270. 
Certainty,  270. 

Certificates,  270. 

Certiorari,  270. 

Challenges,  299. 

Chambers,   299. 

Champerty,  299. 

Chancery,  299. 

Change  of  Venue,  300. 

Character,  309. 

Charge,  309. 

Chattel   Mortgages,  309. 

Chattels,  309. 

Children,  309. 

Choses  in  Action,  309. 

Churches,  309. 

Circuit  Court  Commissioners,  310. 

Circuit  Court  Bules,  317. 

Circuit  Courts,  317. 

Citations,  324. 

Cities  and  Villages,  324. 

Clerks  op  Court,  324. 

C7ient,  329. 

Closing  Argument,  330. 

C/iibs,  330. 

Coercion,   330. 


Cognovit,  330. 

Collateral   Attack,   331. 

Coior  o/   Tt«e,  332. 

Commencement  of  Actions,  332. 

Commercial  Paper,  383. 

Commissioners,  383. 

Commitment,  383. 

Common  Carriers,  383. 

Common  Council,  383. 

Common   Counts,   383. 

Common  Bules,  383. 

Communications,  383. 

Comparison,   383. 

Complaint,  383. 

Compromise,   384. 

Computation   of   Time,   384. 

Concealment,  384. 

Conclusions,  384. 

Condemnation    Proceedings,    384. 

Conduct,  384. 

Conductor,  384. 

Confession   of  Judgment,  384. 

Confidential  Communications,  387. 

Consent,  388. 

Consideration,  388. 

Consolidation,  388. 

Consolidation  of  Actions,  388. 

Constitutional  Law,  393. 

Construction,  393. 

Contempt,  393. 

Continuances,  413. 

Contracts,  421. 

Contradictory  Statements,  421. 

Contribution,  421. 

Convenience   of    Witiiesses,   421. 

Conversion,  422. 

Conviction,  422. 

Coroners,  422. 

Corporations,  423. 

Costs,  426. 

Counties,  443. 

Cau7it«,  443. 

County  Clerks,  443. 

Courts,  443. 

Covenant,  Action  of,  461. 

Coics,  463. 


Table  of  Topics 


Vll 


[Italics  indicate 

Credibility,  463. 
Creditor's  Suit,  463. 
Crier,  463. 
Criminal  Law,  463. 
Crops,  463. 

Cross-Examination,  464. 
Cumulative  Eemedies,  464. 
Cvstody,  464. 

Damages,  464. 

Date,  464. 

Dai/,  464. 

Dead  Bodies,  464. 

Deat;^,  464. 

Death  by  Wrongful  Act,  464. 

Debt,  Action  of,  467. 

Decisions,  467. 

Declaration,  467. 

Declaratory  Judgments,  467. 

Deeds,  468. 

Defaults,  473. 

Defects,  485. 

Defendants,  486. 

Defenses,  486. 

Defirdtions,  486. 

Demand,  486. 

Demurrers,  486. 

Departure,  486. 

Depositions,  486. 

Deputies,  499. 

Description,  499. 

Detention,  499. 

Detinue,  499. 

Diagrams,  500. 

Diofa,  500. 

Direct  Examdnation,  500. 

Directing   Verdict,  500. 

Directors,  500. 

Disbarment,  500. 

Disbursements,  500. 

Discharge,  501. 

Disclosure,  501. 

Discontinuance    and    Voluntary 

Nonsuit,  501. 
Discovery     and     Inspection     of 

Papers,  510. 


Discretion  of  Court,  515. 
Dismissal,  515. 

Dismissal  for  Want  op  Prosecu- 
tion, 515. 
Disorderly  Conduct,  517. 
Disqualification,    517. 
Dissenting   Opinions,   517. 
Dissolution,   517. 
Distraint,  517. 
Docket,   517. 

Documentary   Evidence,   517. 
Documents,  517. 
Double    Costs,    517. 
Dower,  518. 
Dry  Goods,  521. 
Duces  Tecum,  521. 
Duplicity,  522. 
Duress,  522. 
Dwelling   Houses,   522. 

Earnings,  522. 

Education,  522. 

Ejectment,  522. 

Election  op  Remedies,  563. 

Elections,  566. 

Employees,  566. 

^ntri/,   566. 

Equity,  567. 

Equity  of  Redemption,  567. 

Error,  Writ  of,  567. 

Escape,  657. 

Estates,  658. 

Estates  of  Decedents,  658. 

Estoppel,  658. 

Eviction,  659. 

Evidence,   659. 

Examination,  691. 

Exceptions,  691. 

Executions,  695. 

Executors     and    Administrators, 

780. 
Exemptions,  787. 
Exhibition,  799. 
ExUhits,  799. 
Experts,  799. 


Vlll 


Table  of  Topics 


[Italics  indicate 
Extension   of   Time,    799. 
Extradition,   800. 

Facts,    800. 

False  Imprisonment,  800. 

False  Personation,  801. 

Family  Pictures,  801. 

Fees,  801. 

Females,  802. 

Fi  Fa,  802. 

Filing,  802. 

Findings,    802. 

Fines,  802. 

Firms,  803. 

Fixtures,  803. 

Food,  803. 

Forcible  Entry  and  Detainer,  803. 

Foreclosure,  803. 

Foreign  Corporations,  803. 

Forfeitures,  803. 

JFor«^   o/  ^cfton,   804. 

Former  Jeopardy,  804. 

Former  Recovery,  804. 

Fractions,  804. 

Franchises,  804. 

Fraternal  Benefit  Societies,  804. 

Fraud,  804. 

F'raudulent  Conveyances,  806. 

Fraudulent  Debtors,  806. 

Fraudulent   Sales   and   Conveyances, 

818. 
JFit^/,  819. 
Furniture,  819. 

Garnishment,  819. 
General  Assumpsit,  887. 
General  Issue,  887. 
Good  Fa?</i-,  887. 
Goods  5o/d  «?id  Delivered,  887. 
Govei-nor,  887. 
Grai?i,  887. 

Guardian     ad     Litem     or     Next 
Friend,  887. 


cross-rf/ere?ices] 

Harmless  Error,  923. 
fl^CM-s,  923, 
Highways,  923, 
flo^s,  923. 
Holidays,  923. 
Homesteads,  923. 
Household  Goods,  928. 
Householder,  928. 
Husband   and    Wife,   928. 
Hypothetical  Questions,  928. 

Impeachment,  929. 
Imprisonment,  929. 
Improvements,  929. 
Incompetents,  929. 
Incriminating   Evidence,  929. 
Indebitatus  Assumpsit,  929. 
Indemnity,  929. 
/ndea:,  929. 
Indictment,  929. 
Indorsements,  929. 
Infants,  929. 

InfornW'twn  and  Belief,  930. 
Information  in  Nature  of  Quo  War 

ranto,  930. 
Initials,  930. 
Injunction,  930. 
Insane  Persons,  930. 
Insolvent  Debtors,  930. 
Inspection,  930. 
Instalments,  930. 
Instructions  to  Jury,  931. 
Insurance,  950. 
Interest,  952. 
Interlocutory,  952. 
Interpleader,  952. 
Interpreters,  952. 
Interrogatories,  952. 
Interurban   Eailroads,   952. 
Intoxicating  Liquws,   952, 
Inventory,   952. 
Irregularities,  952. 
Issues,  953. 


Habeas  Corpus,  895. 
Handwriting,  923. 


Jail  Liberties,  953. 
Joinder,  956. 


Table  of  Topics 


IX 


[Italics  indicate  cross-references] 
Joinder   and  Splitting   of  Causes      Judicial  Action,   1002 

OF  Action,  956. 
Joint  Liability,  963. 
Joint  Ownership,  963. 
Judges,  964. 
Judcjment,  975, 
Judicature  Act,  1001. 


Judicial  Notice,   1002. 

Judicial  Fewer,  1003. 

Jurat,  1003. 

Jurisdiction,  1003. 

Jury,  1003. 

Justices  op  the  Peace,  1026. 


VOLUME  II 


Land,  1105. 

Landlord  and  Tenant,  1105. 
Law  Bool's,  1105. 
Treading  Questions,  1105. 
Leaseholds,  1105. 
Leases,  1105. 
Leave  of  Court,  1106. 
Leave  to  Appeal,  1106. 
Legacies,  1106. 
Legislature,  1106. 
Levy,  1107. 

,Libel  and  Slander,  1107. 
Library,  1115. 
License,  1115. 
Liens   Enforceable  in   Action  at 

Law,  1116. 
Limitation  op  Actions,   1142. 
Lis  Pendens,  1166. 
Logs,  1166. 

Lost  Instruments,  1166. 
Lunatics,  1168. 

Machines,  1168. 

Mail,  1168. 

Mointenaivce,  1168. 

Malicious  Prosecution,   1168. 

Mandamus,  1175. 

Manuscripts,  1231. 

Maps,  1231. 

Married  Women,  1232. 

Master  and  Servant,  1235. 

Mechanic's  Liei^,  1235. 

Memoranda,   1235. 

Memory,  1235. 

Mesne  Profits,  1235. 

Militia,  1235. 

Ministers,  1235. 


Misconduct,   1236. 

Misjoinder,  1236. 

Misnomer,  1236. 

Mistakes,  1236. 

Mitigation,  1236. 

Mixed  Actions,  1236. 

Money,   1236. 

Money  Had  and  Received,  Lent  or 

Paid,  1236. 
ilfo»</i,  1236. 
Mortgages,  1236. 
Motions,  Rules  and  Orders,  1269. 
Municipal  Corporations,  1276. 
Murder,  1276. 
Mutual  Accounts,  1276. 
Mut^ial  Benefit  Societies,  1276. 

Names,   1277. 

Negligence,  1277. 

Negotiable  Instruments,    1283. 

New  Trial,  1283. 

Newly  Discovered  Evidence,  1307. 

Newspapers,  1307. 

iVej;<  Friend,  1307. 

Nonresidents,  1307. 

Nonsuits,  1307. 

Notaries,  1308. 

iVoies,  1308. 

A''o«tre,   1308. 

Nuisance,  1308. 

Number,  1312. 

iVMHP  Pro  rwnc,  1312, 

Oaths,  1312. 
Objections,  1315. 

Obtaining  Admission  of  Genuinenesa 
of  Writing,  1315. 


Table  of  Topics 


[Italics  indicate 
Occupancy,  1315. 
Offer  of  Judgment,  1315. 
Offer  of  Proof,  1317. 
Offkers,  1317. 
Open  and  Close,  1318. 
Opening  Argument  to  Jury,  1318. 
Opinions,  1318. 
Order  of  Proof,  1318. 
Order  to  Show  Cause,  1318. 
Orders,  1318. 
Ordinances,  1318. 
Original  Writs,  1319. 
Ou-nership,  1319. 

Papers  and  Notices,  1319. 

Parcels,  1321. 

Parties  to  Actions,  1321. 

Partition,  1347. 

Partnership,  1347. 

Payment,  1348. 

Payment  Into  Court,  1350. 

Penalties,  1352. 

Pendency  of  Another  Action,  1352. 

People,  1352. 

Peremptory  Challenges,  1352. 

Perishable  Property,   1352. 

Perjury,  1352. 

Perpetuating  Testimony,  1352. 

Personal  Actions,  1352. 

Personal  Injuries,  1352, 

Personal  Property,  1353. 

Petitions,  1353. 

Physical  Examination,  1353. 

Physicians  and  Surgeons,  1354. 

Pianos,  1354. 

Pface,  1354. 

Plaintiffs,  1354. 

Pleading,  1355. 

P?eas,  1481. 

Pledges,  1481. 

Pluries,  1482. 

Policemen-,  1482. 

Policy,  1482. 

PoZZ,  1482. 

PoZI«,  1482. 

Pool  Table,  1482. 


cro55-re/ercnccs] 
Poor  Debtors,  1482. 
Possession,  1483. 
Posting,   1483. 
Postponement,  1483. 
Praecipe,  1483. 
Prayer  /or  i?ehe/,  1483. 
Prejudice,  1483, 

Preponderance  of  Evidence,  1483. 
Presumptions,  1483. 
Principal  and  Agent,  1483. 
Principal  and  Surety,  1483. 
Printing,  1483. 
Priorities,  1484, 
Prisoners,  1484. 
Privilege,  1484, 
Probable  Cause,  1484, 
Probate  Courts,  1484. 
Procedendo,  Writ  of,  1510. 
Process,  1511. 
Profert,  1515. 

Professional  Employment,  1515, 
Pro/i<s,  1515. 

Prohibition,  Writ  of,  1515. 
Prolixity,  1524, 
Promise,  1524. 
Proo/,  1524. 

Prosecuting  Attorneys,  1524. 
Proving  Execution  of  Deeds,  1526. 
Provisions,  1526. 
Publication,  1526. 
Public  Lands,  1526. 
Puts  Darrein  Continuance,  1527. 
Punishment  of  Fraudulent  Debtors, 
1527, 

QMaJt^«ifior*s,  1527. 
Quashing,  1527, 
Questions,  1527, 
Quo  Warranto,  1527. 
Quorum,  1556, 

Eailroads,  1556, 
^eat  JritOTW,  1556, 
JBeaJ  Evidence,   1556, 
J?eaZ  Property,  1556, 
Seasons,   1556. 


Table  of  Topics 


XI 


[Italics 

RehuttaJ,  1556. 
Eecall,   1556. 
Eeceiptor,  1556. 
Eeceivers,  1557. 
Recognizance,  1557. 
Recommittal,   1557. 
Eecord,  1557. 
Recording,  1558. 
Recoupment,  1558. 
Redemption,  1558. 
Redirect  Examination,  1558. 
Keferences,  1558. 
Refreshing  Memory,  1572. 
Rehearing,   1572. 
Reinstatement,  1572. 
Relatives,  1572. 
Relators,  1573. 
Eelease,  1573. 
Remnrlcs,  1573. 
Remedies,  1573. 
Remittitur,  1574. 
Removal,   1574. 
Removal  of  Causes,  1574. 
i?<?n<,  1574. 
Reopening  Case,  1574. 
Repetition,  1574. 
Replevin,  1574. 
Replication,  1641, 
Report,   1641. 
Repoeter,  1641. 
R(.ports,   1642. 
Reputation,  1642. 
Requests,  1642. 
^f«  Judicata,  1642. 
Residence,  1643. 
Resistance,  1643. 
Restitution,  1643. 
Restoration,  1643. 
Retainer,   1643. 
Retaxation,   1643. 
Returns,  1643. 
Reversal,  1644. 
Review,  1644. 
i?«Ze«,  1644. 
Rules  of  Court,  1644. 


indicate  cross-references] 
Sales,  1646. 
Satisfaction,   1649. 
Saturday,  1649. 

Saving   Questions  for  Review,  1650. 
School  Districts,   1650. 
Scintilla,  1650. 
Scire  Facias,  1650. 
Seai,  1651. 

Secretary  of  State,  1651. 
Security  for  Costs,  1651. 
Seduction,  1654. 
Selection,   1657. 
Senators,  1657. 
Sentence,  1657. 
Service  of  Papers,  1657. 
Set-off  and  Recoupment,  1662. 
Settlement,  1675. 
Seiving  Machines,  1675. 
;S/'ares  o/  /Sfocfc,  1675. 
Sheriffs,  1675. 
Signatures,  1682. 
Similiter,  1682. 
Slander,   1682. 
Soldiers,  1682. 
Solicitor,  1682. 
Special  Appeals,  1682. 
Special  Assumpsit,  1682. 
Special  Findings  of  Fact   by  Jury, 

1682. 
Special  Jury,  1682. 
Special  Motions,  1682. 
Special  Notice,   1683. 
Special  Proceedings,  1683. 
Special  Term,   1683. 
Special  Verdict,  1683. 
Speoific  Performance,  1683. 
Splitting  Causes  of  Action,  1683. 
/Srare  Decisis,  1683. 
State,  1683. 
5<o<e  Reporter,  1684. 
/S/a<(?  Treasurer,  1684. 
Statute  of  Frauds,  1684. 
Statutes,  1684. 

Statutes  of  Limitations,  1684. 
Stay  of  Proceedings,  1684. 
Stenographers,  1690. 


Xll 


Table  of  Topics 


[Italics  indicate 

Stipulations,  1693. 

Stocic,  1693. 

Stockholders,   1693. 

Siieet  Bailroads,  1693. 

Stniclc  Jury,  1694. 

Subject  of  Action,  1694. 

Subpoenas,  1694. 

SnBSCRiBiNG  Witnesses,  1701. 

Substitution,   1701. 

Slggestions,  1701. 

Summary  and  Special  Proceed- 
ings TO  Eecover  Possession  of 
Land,  1702. 

Summing  up  by  Counsel,  1741. 

Summons,    1742. 

Sunday,  1742. 

Supersedeas,  1742. 

Supplementary  Proceedings,  1742. 

Supreme  Court,  1747. 

Sureties,  1776. 

Surplusage,   1776. 

Surprise,  1776. 

Surrender,  1776. 

Survey,  1776. 

Survival,  1776. 

Taking  Case  from  Jury,  1776. 

Talesman,  1776. 

Taxation,  1776. 

Taxes,   1776. 

Taxpayers,  1777. 

Teachers,  1777, 

Telephone  Companies,   1777. 

Tenants  in  Common,  1777. 

Tender,  1777. 

Tfirm  F^-e,  1780. 

2Vr?rus  o/  Court,  1780. 

Tes/e,    1780. 

Timber,  1780. 

Time,  1780. 

Tt«e,  1783. 

Torts,  1784. 


cross-references'] 
Towns,  1784. 
Transcripts,  1784. 
Transfer  of  Caiises,  1784. 
Trespass,  1784. 
Trial,  1791. 

Trover  and  Conversion,  1847. 
Trtists  and  Trustees,  1856. 

Tse  find  Occupation,  1856. 

Vacation,  1856. 

T'o/we,  1856. 

T'ariance,  1856. 

Vendors,  1856. 

Venue,   1856. 

Verdict  and  Findings,  1862. 

Verification,  1883. 

Vexatious  Appeals,  1884. 

rtcH',  1884. 

Villages,  1884. 

Vouchers,  1884. 

Vr'ages,  1884. 

Waiver,  1884. 

FPar,  1884. 

Warrant,  1884. 

\V.\STE,  1884. 

Weight  of  Evidence,  1890. 

rr/ifli  Law.'  Governs,  1890. 

fPf^s,  1890. 

Withdrarml,  1890. 

Witnesses,  1890. 

TTotA-  a»^  Labor,  1949. 

V/orkmen's     Compensation     Act, 

1949. 
n'r;/  0/  Error,  1966. 
TT'rf./  o/  Possession,   1966. 
Writing,   1966. 
fFnfs,  1966. 
Written  Instruments,  1967. 

Yfar,  1967. 


Abbott 

Cyclopedia  Michigan 

Practice 


Volume  I 


ABANDONMENT 

The  only  connection,  it  seems,  in  which  abandonment 
relates  to  practice  is  in  relation  to  abandonment  of  a  levy 
or  execution  sale  (see  Executions),  or  the  abandonment 
of  exemptions  (see  Exemptions),  or  the  abandonment  of 
special  counts  in  a  declaration  (see  Assumpsit;  Plead- 
ing). 

ABATEMENT  AND  REVIVAL 

§  1.  What  causes  of  action  survive  death  of  party. 

§  2.  Procedure  where  cause  of  action  survives  and  sole  plaintiff  or  de- 
fendant dies. 

§  3.  Procedure  on  death  of  part  or  all  of  several  plaintiffs  or  defendants. 

§  4.  Suggestion   of   death  of   party. 

§  5.  Procedure  where  cause  of  action  survives  but  is  alleged  as  one  which 
does  not. 

§  6.  Procedure  where  representative   fails  to   appear. 

Cross-Eeferences:  Ejectment  (effect  of  death  of  party  or  parties  in 
ejectment);  Another  Action  Pending;  Stay  of  Proceedings;  Death 
BY  Wrongful  Act. 

§  1.  What  causes  of  action  survive  death  of  party. 

In  regard  to  all  causes  of  action  arising  ex  delicto,  the 
rule  of  the  common  law  is  actio  personalis  moritur  cum 
persona.  But  the  statute  4  Edw.  Ill,  c.  7,  introduced  an 
exception  to  that  rule,  so  that  all  actions  for  injury  to 
personal  property  might   be  brought  by  the  personal 

1 

1  Abbott— 1 


-  Abatement  and  Revival  §  1 

representatives  of  a  deceased  party  whose  rights  to  such 
property  had  been  infringed.  Another  exception  to  the 
rule  was  introduced  by  the  statute  3  &  4  Wm.  IV,  c.  42, 
sec.  2,  by  which  the  personal  representatives  of  a  de- 
ceased person  might  maintain  an  action  for  injuries  to 
the  real  estate  of  the  deceased.  But  as  to  mere  injuries 
to  the  person,  the  rule  of  the  common  law  was  not  af- 
fected by  these  statutory  provisions.  In  Michigan,  how- 
ever, the  rule  actio  personalis  moritur  cum  persona  has 
been  more  extensively  modified  by  legislative  enactments, 
so  that,  in  addition  to  the  actions  which  survive  by  the 
common  law,  the  following  also  survive,  that  is  to  say: 
(1)  Actions  of  replevin,  (2)  actions  for  the  conversion 
of  property,  (3)  for  deceit,  (4)  for  assault  and  batteiy, 
(5)  for  false  imprisonment,  (6)  for  negligent  injury  to 
persons,  (7)  for  damage  done  to  real  or  personal  estate 
and  (8)  actions  to  recover  real  estate  or  any  interest 
therein  where  persons  have  been  induced  to  part  with 
the  same  through  fraudulent  representations  and  deceit.* 

Whether  a  cause  of  action  for  conspiracy  to  restrict 
trade  and  injure  the  business  of  another  survived  the 
death  of  the  latter,  as  an  action  for  fraud  and  deceit, 
was  determined  in  the  negative  by  an  equally  divided 
court.* 

This  statutory  enumeration  of  the  actions  which  sur- 
vive the  death  of  a  party  includes  a  statutory  action  for 
injury  sustained  from  defective  highways,'  and  actions 
for  malpractice  against  a  physician,*  but  not  an  action 
by  the  heirs  of  a  husband  against  his  widow  for  fraudu- 

IJud.    Act,   ch.    12,    §32;    Coinp.  92;  Norris  v.  Grove,  100  Mich.  256. 

Laws   1915,   §  12383.     See   Hyatt   v.  2  Frohlieh    v.    Deaeou,    181    Mich. 

Adams,    16   Mich.    180,   189;    James  255. 

V.  Emmet  Min.  Co.,  55  Mich.  335;  3  Raeho    v.    City    of    Detroit,    90 
Van    Brunt    v.    Cincinnati,    etc.,    R.  Mich.   92;    Roberts   v.    City   of   De- 
Co.,  78  Mich.  530,  539;   Stebbins  v.  troit,  102  Mich.  64. 
Dean,   82   Mich.   385;    Hurst  v.   De-  4  Norris    v.    Kent    Circuit    Judge, 
troit    City    R.    Co.,    84    Mich.    539;  100   Mich.   256. 
Kacho  V.   City  of  Detroit,  90  Mich. 


§  '2  Abatement  and  Revival  3 

lently  destroying  his  title  deeds  to  land  and  procuring 
the  title  in  her  own  name.^  Bastardy  proceedings  abate 
on  the  death  of  the  defendant.^  The  right  of  action  for 
injuries  to  the  person  arising  from  negligence,  which 
survives  under  this  statute,  is  a  separate  and  distinct 
cause  of  action  from  that  given  by  statute  to  the  per- 
sonal representatives  for  the  pecuniary  injury  resulting 
from  his  negligent  killing.'''  A  statutory  provision  that  a 
cause  of  action  shall  survive  is  equivalent  to  saying  that 
an  executor  may  sue  on  it;  and  hence  an  executor  may 
sue  where  the  conversion  occurred,  but  was  not  sued  on, 
in  the  lifetime  of  the  testator.' 

§2.  Procedure  where  cause  of  action  survives  and  sole 
plaintiff  or  defendant  dies. 
Where  the  cause  of  action  survives,  the  statute  pro- 
vides that,  if  a  sole  plaintiff  or  defendant  dies,  the  action 
shall  not  abate,  but,  upon  a  proper  suggestion  of  the 
death  of  such  party  on  the  record,  the  executor  or  ad- 
ministrator of  the  deceased  party  shall  be  admitted  to 
prosecute  or  defend  it.®  If  the  action  be  one  brought  by 
or  in  the  name  of  a  public  officer  or  a  trustee  appointed 

5  Stebbins  v.  Dean,  82  Mich.  385.  injury   resulting   in   death   within   a 

6  People  V.  Kemppainen,  163  few  moments,  it  is  "instantaneous" 
Mich.  186.  within  the  meaning  of  the  statute. 

7  Hurst  V.  Detroit  City  Ry.,  84  West  v.  Detroit  United  Ry.,  159 
Mich.  539;  Fernette  v.  Pere  Mar-  Mich.  269,  and  see  Death  by 
quette  R.  Co.,  175  Mich.  653,  671;  Wrongful  Act. 

Love    V.   Detroit,    etc.,    R.    Co.,   170  8  Rogers    v.    Windoes,    48    Mich. 

Mich.  1;  Rouse  v.  Michigan  United  628. 

R.    Co.,    164   Mich.   475;    Walker  v.  9  Jud.    Act,   ch.    12,    §34;    Comp. 

Lansing,  etc.,  R.  Co.,  156  Mich.  514.  Laws    1915,     §12385;     Botsford    v. 

Where  the  deceased  continued  to  Sweet,  49  Mich.  120.     A  suggestion 

live  for  some  fifteen  minutes  after  is  a  statement  formally  entered  on 

he  was  struck  by  a  street  car,  but  the  record  of  some  fact  or  circiun- 

was  dead  when  taken  from  beneatih  stance   which  materially  affects   the 

the  car,  the  appropriate  remedy   is  further  proceedings,  but  which,  for 

under   thf  "death"  statute,  rather  some     reason,    cannot    be    pleaded, 

than     under    this    Rurvival     statute,  C.  J.  Huebel  Co.  v.  MacKinnon,  186 

since    where    there    is    a   continuing  Mich.  617. 


4  Abatement  and  Revival  §  2 

by  virtue  of  a  statute,  it  may  be  continued,  after  his 
death  or  removal,  by  his  successor,  who  will  be  substi- 
tuted for  that  purpose  by  the  court  upon  the  entry  of  a 

suggestion  for  such  substitution  on  the  record.-^'' 

§  3.  Procedure  on  death  of  part  or  all  of  several  plain- 
tiffs or  defendants. 
Before  the  Judicature  Act,  in  actions,  the  cause  of 
which  survives,  where  there  were  two  or  more  plaintiffs 
or  defendants,  in  the  case  of  the  death  of  one  of  them, 
the  action  has  been  prosecuted  or  defended  by  the  sur- 
vivor or  survivors  and  in  case  of  the  death  of  all  the 
plaintiffs  or  defendants,  the  action  has  been  prosecuted 
or  defended  bj^  the  executor  or  administrator  of  the  last 
survivor.  If  the  deceased  was  a  plaintiff,  this  proce- 
dure deprived  his  representatives,  to  whom  his  interest 
in  the  cause  of  action  passed,  of  any  right  to  participate 
in  the  management  of  the  suit.  If  the  deceased  party 
was  a  defendant,  it  deprived  the  plaintiff  of  tlie  right 
to  pursue  his  remedy  in  one  suit  against  both  the  sur- 
vivor and  the  estate  of  the  deceased.  The  new  practice 
provides  that  upon  the  decease  of  either  a  plaintiff  or 
defendant  in  such  a  case,  the  executor  or  administrator 
shall  be  admitted  to  prosecute  or  defend  together  with 
the  survivor  and  that  in  the  case  of  the  death  of  all  the 
plaintiffs  or  defendants,  the  action  shall  be  prosecuted 
or  defended  jointly  by  the  executors  or  administrators 
of  all  the  plaintiffs  or  defendants.^^  If,  however,  the  ac- 
tion is  brought  to  recover  upon  a  several  or  joint  and 
several  liability  and  one  of  the  defendants  dies,  the  plain- 
tiff may,  at  his  option,  proceed  against  the  survivor  with- 
out bringing  in  the  executor  or  administrator  of  the  de- 
ceased.^^ 

lOJud.    Act,    ch.    12,    §8;    Comp.  Van    Kleeck    v.    McCabe,    87    Mich. 

Laws  1915,  §  12:559.  599. 

llJiul.    Act,    ch.    12,    §§;',5,    36;  12  Jud.    Act,   ch.   12,    §41;    Comp. 

Comp.  Laws  1915,   §§12386,  12387;  Laws  1915,   §12392. 


§  4  Abatement  and  Revival  5 

If  the  cause  of  action  is  one  which  does  not  survive, 
and  one  or  more  of  the  plaintiffs  or  defendants  die,  the 
action  abates  only  as  to  the  person  or  persons  so  dying, 
and  the  surviving  parties  may  proceed  without  reviving 
the  suit.^^ 

§  4.  Sugg-estion  of  death  of  party. 

The  proceeding  on  suggesting  the  death  of  a  party  is 
entirely  ex  parte.  The  statute  does  not  require  prelim- 
inary notice  of  it  to  be  given  to  the  opposite  party,  but 
there  should  be  proof  presented  to  the  court  in  all  cases, 
and  a  copy  of  the  suggestion  and  order  of  revivor  should 
be  served  upon  the  adverse  party  in  the  same  manner 
as  a  pleading,  in  order  that,  if  he  desires  to  do  so,  he  may 
plead  to  the  suggestion  and  have  an  issue  framed  upon 
it.  The  suggestion  of  the  death  of  a  plaintiff  and  a  re- 
vival of  the  suit  in  the  name  of  his  alleged  administra- 
tor do  not  foreclose  the  right  of  the  defendant  to  ques- 
tion the  authority  of  the  supposed  administrator. 

Where  a  suggestion  of  the  death  of  a  party  appears 
on  the  record,  and  the  authority  of  the  representative  is 
not  disputed,  all  the  proceedings  in  the  cause  are  to  be 
construed  with  it.  The  pleadings  and  other  parts  of  the 
record  and  papers  filed  in  the  cause  prior  to  the  revival 
of  it  need  not  be  amended,  but  afterwards  they  should 
be  properly  entitled.^* 

Form  of  Suggestion  of  Death  of  Plaintiff 

(Title  of  court  and  cause.) 

Cornea   now    E.    F.,    of    ,    and    suggests   and    gives    to    the    court 

now  here  to  understand  and  be  informed  that  the  said  plaintiff,  on  the 

13  Jud.  Act,  eh.  12,  §  33 ;  Comp.  The  omission  of  a  plaintiff 's  ad- 
Laws  1915,  §  12384.  ministrators  to  revive  the  suit  before 

14  Vickery  v.  Beir,  16  Mich.  50 ;  taking  out  an  execution  after  his 
Larned  v.  Wilcox,  4  Mich.  333 ;  Jud.  death  is  only  an  irregularity  and 
Act,  ch.  20,  §  26;  Oomp.  Laws  1915,  may  be  cured  by  an  order  nunc  pro 
§  12762.  People  v.  Judge  of  Sev-  tunc.  Jenness  v,  Lapeer  Circuit 
enth  Circuit,  41  Mich.  3.  Judge,  42  Mioh.  469. 


6  Abatement  and  Revival  §  4 

day   of    ,   A.  D ,    at    died,    and   that   af ter- 

wardi«.  to  wit,  on  the  day  of  ,  A.  D ,  letters  testa- 
mentary were  duly  issued  to  the  said  E.  F.,  as  executor  of  the  last  will 
and   testament   of   the   said   plaintiff,   deceased,   by   the   judge   of   probate 

of    the    county    of     ,    which    the    said    defendant    does    not    deny. 

Wherefore,  the  said  E.  F.  prays  tSiat  he  may  be  admitted  to  prosecute 
said  cause  as  such  executor,  and  it  is  granted,  etc. 

§  5.  Procedure  where  cause  of  action  survives  but  is  al- 
leged as  one  which  does  not. 
If  the  plaintiff  dies  and  the  cause  of  action  as  stated 
in  the  declaration  does  not  survive,  his  representatives 
may,  by  filing  an  affidavit  showing  his  death  and  that 
the  declaration  on  file  does  not  correctly  set  forth  the 
real  cause  of  action,  on  motion  in  open  court,  accom- 
panied by  an  amended  declaration  showing  a  cause  of 
action  which  does  sui'vive,  be  made  plaintiffs  in  the  suit 
and  the  suit  will  stand  survived  as  in  other  cases.^^  And 
if  a  defendant  dies,  and  the  cause  of  action  stated  in  the 
declaration  does  not  survive  and  the  plaintiff  neglects 
or  refuses  to  procure  an  order  for  the  revival,  the  court, 
upon  a  showing  by  affidavit  of  the  death  and  that  the 
real  cause  of  action  was  not  correctly  set  forth,  but  is 
one  which  does  survive,  may,  upon  the  motion  of  a  sur- 
viving defendant,  order  the  suit  to  stand  revived  against 
the  representatives  of  the  deceased  defendant. ^^ 

§  6.  Procedure  where  representative  fails  to  appear. 

If  the  executor  or  administrator  of  a  deceased  party 
does  not  voluntarily  appear  on  or  before  the  first  day 
of  the  next  term  after  his  death,  the  opposite  party  or 
any  co-plaintiff  or  co-defendant  of  the  deceased  party 
may  have  an  order  of  course  that  the  executor  or  admin- 
istrator appear  and  take  upon  himself  the  prosecution 

ISJud.   Act,   ch.   12,   §50;    Coiiip.  16  .Tud.    Act,   ch.   12,    § -ll  ;    Conip. 

Laws   1915,    §12401.  Laws  1915,  §12402. 


§  6  Abatement  and  Revival  7 

or  defense  of  the  suit  within  thirty  days  after  service  of 
notice  of  such  order.^' 

The  notice  of  the  order  should  be  personally  served 
on  the  representative  or  other  person  interested  against 
whom  the  revivor  is  ordered,  if  he  is  a  resident  of  the 
state. ^®  In  case  of  such  service,  if  he  does  not  appear  in 
the  case  within  thirty  days  thereafter,  his  default  may 
be  entered  and  such  judgment  rendered  against  him  in 
his  representative  capacity,  if  he  be  an  executor  or  ad- 
ministrator, as  may  be  proper  in  the  case.^® 

If  the  representative  or  other  person  against  whom 
the  revivor  is  sought  is  not  a  resident  of  the  state,  an 
order  of  publication  of  notice  may  be  had  from  the  proper 
court  or  office  in  the  same  manner,  and  to  be  published 
in  the  same  manner,  as  in  case  of  absent,  concealed  or 
nonresident  defendants  in  original  bills  in  chancery,  and 
if  the  person  does  not  appear  within  the  time  limited  by 
the  order  of  publication,  upon  due  proof  of  publication, 
his  default  may  be  entered  and  such  judgment  rendered 
against  him  as  is  proper  in  the  case,  which,  if  he  be  an 
executor  or  administrator,  should  be  in  his  representa- 
tive capacity.^*^ 

If  the  representative  or  other  person  against  whom  the 
revivor  is  ordered  does  not  appear  within  the  time  lim- 
ited for  him  to  appear,  and  the  deceased  party  has 
pleaded  in  the  case,  such  pleading  will  be  deemed  the 
pleading  of  such  representative  or  other  person.'^^ 

In  all  cases  where  the  opposite  party  or  a  co-plaintiff 
or  co-defendant  is  entitled  to  have  the  executor  or  ad- 
ministrator of  a  deceased  party  brought  into  the  action 
as  a  ])arty  to  it,  if  an  executor  or  administrator  has  not 

17Jud.   Act,   ch.   12,  §37;    Comp.  20  Jud.  Act,   ch.   12,   §40;    Comp. 

Laws  1915,  §  12388.  Laws  1915,  §  12391. 

18  Jud.   Act,  ch.    12,  §38;    Comp.  21  Jud.   Act,  ch.   12,   §39;    Comp. 

Laws  1915,   §  12389.  Laws  1915,  §  12390. 

19Jiul.   Act,   ch.   12,  §40;    Comp. 
Laws  19L5,  §  12391. 


8  Abatement  and  RE\avAL  §  6 

been  appointed,  he  may  petition  for  the  appointment  of 
an  administrator  in  like  manner  as  creditors  are  entitled 
to  do." 

In  actions  of  replevin  or  in  attachment,  when  a  bond 
has  been  given  by  a  sole  plaintiff  and  he  dies  during  the 
pendency  of  the  suit,  it  is  sufficient  if  the  defendant  no- 
tify the  sureties  in  the  bond  to  appear  and  prosecute  the 
suit;  and  if  they  fail  to  do  so  within  such  time  as  the 
court  directs,  their  appearance  may  be  entered  and 
the  cause  may  proceed  as  though  the  suit  had  been 
orifirinallv  commenced  in  the  name  of  the  sureties.^^ 


'to' 


ABBREVIATIONS 

All  writs,  process,  proceedings  and  records  in  the 
courts  of  this  state  are  required  to  be  made  out  in  words 
at  length  and  not  abbreviated  except  such  abbreviations 
as  are  commonly  used  in  the  English  language  and  ex- 
cept that  numbers  may  be  expressed  by  Arabic  figures 
or  Roman  numerals.  This  is  expressly  provided  in  sec- 
tion 13  of  chapter  4  of  the  Judicature  Act. 

ABSCONDING 

The  absconding  of  a  debtor  as  a  ground  for  attach- 
ment is  stated  in  the  article  on  Attachment. 

ABSENCE 

Absence  from  the  state  may  affect  the  running  of  the 
statute  of  limitations  (see  Limitation  of  Actions)  and 
absence  of  a  party,  witnesses,  etc.,  generally  may  warrant 
continuance  of  a  case  (see  Continuance).  So  absence 
may  affect  the  service  of  papers  (see  Service  of  Papers). 
Temporary  absence  from  the  state,  however,  is  different 
from  residence  in  another  state.     The  question  of  resi- 

22Jufl.    Act,   ch.    12,   §49;    Comp.  23  Jud.   Act,  ch.    12,   §52;    Comp. 

Laws  1915,  §12400.  Laws  1915,  §  12403. 


Accord  and  Satisfaction  9 

dence  is  often  of  importance  in  attachment  suits  (see 
Attachment)  and  garnishment  proceedings  (see  Garnish- 
ment). Jurisdiction  where  all  the  parties  reside  out  of 
the  state  is  governed  by  statute  (see  Courts). 

ABUSE  OF  PROCESS 

Cross-References:    Malicious  Pkosecution;  Contempt. 

An  action  for  abuse  of  process  lies  in  case  of  improper 
use  of  process  after  it  has  been  issued.  It  does  not  lie 
for  maliciously  causing  it  to  issue.  An  action  for  mali- 
cious abuse  of  process  differs  from  an  action  for  malicious 
prosecution.^ 

There  is  no  abuse  of  process  where  no  step  is  taken 
except  such  as  is  authorized  by  law.^ 

ACCORD  AND  SATISFACTION 

As  stated  in  the  article  on  Pleading,  accord  and  satis- 
faction is  an  affirmative  defense  of  which  notice  must 
be  given. 

I'orm  of  Notice  of  Accord  and  Satisfaction  Under  Plea  of  General  Issue 

To  the  said  Plaintiff: 

You  will  please  to  take  notice  that  the  said  defendant  will,  on  the  trial 
of  this  cause,  give  in  evidence  and  insist  in  his  defense:  1.  That  after 
making  the  i)romises  and  undertakings  alleged  in  the  declaration  of  the 
said   plaintiff    in   this   cause,   and  before   the   commencement  of   this   suit, 

to  wit,   on    ,  at    ,   the   said   defendant  delivered   to   the   said 

plaintiff  the  following  goods,  that  is  to  say:  (Describe  the  goods.)  2. 
That  the  said  plaintiff  then  and  there  received  and  accepted  the  same  in 
full  satisfaction  and  discharge  of  the  siaid  several  promises  and  under- 
takings in  the  said  declaration  mentioned,  and  of  all  the  damages  sus- 
tained by  the  said  plaintiff  by  reason  of  the  non-performance  thereof. 

K.  L., 
Attorney  for  Defendant. 

1  Spear  v.  Pendill,  164  Mich.  620,  2  Barlow  v.  Lincoln-Williams  Drill 

where  elements  of  action  are  consid-       Co.,  186  Mioh.  46. 
ered. 


10  Accord  and  Satisfaction 

state  Bar  Association  Form 

The   defendant   will   show   that,   on    ,    19 .  . ,   he   delivered   to   the 

plaintiff  a  horse  and  single  top  buggy  which  the  plaintiff  then  and  there 
accepted  in  full  satisfaction  and  discharge  of  the  said  claim. 

ACCOUNT 

Actions  on  acconnts  are  actions  ex  contractu  and  un- 
der the  Judicature  Act  come  within  the  classification 
of  actions  of  assumpsit.  The  statutes  provide  for  affi- 
da^dts  in  actions  on  an  open  account  or  account  stated, 
and  set-offs  founded  thereon,  on  the  part  of  both  plain- 
tiff and  defendant,  and  where  plaintiff  makes  an  affida- 
vit of  the  amount  due  it  is  prima  facie  evidence  of  the 
indebtedness  unless  denied  by  affidavit  of  defendant  (see 
Pleading).  When  limitations  begin  to  run  in  actions  on 
mutual  accounts  is  noticed  hereafter  (see  Limitation  of 
Actions).  The  existence  of  an  account  sometimes  war- 
rants a  reference  (see  References). 

State  Bar  Association  Form  of  Declaration  in  Assumpsit  Upon  a  Book 

Account 

(Title  of  court  and  cause.) 
The  plaintiff  says: 

1.  That  he  did,  between  ,  19..,  and  ,  19..,  sell  and  de- 
liver to  the  defendant  sundry  goods,  upon  a  book  account,  of  which  a  copy 
is  attached  hereto  and  marked  Exhibit  A. 

2.  That  the  defendant  has  paid  only   dollars  upon  said  account, 

lea\-ing  a  balance  of dollars  which  is  now  due  and  unpaid. 

.3.  Wherefore   the   plaintiff   claims   a   judgment   for   the   sum   of    

dollars. 

Form  in  Assumpsit  on  Insimul  Computassent 

The  plaintiff  says: 

1.  That  heretofore,  to  wit,  on  ,  at  ,  the  said  defend- 
ant accounted  together  with  the  said  plaintiff  of  and  concerning  certain 
sums  of  money  before  that  time  due  and  owing  from  the  said  defendant 
to  the  said  plaintiff  and  then  and  there  being  unpaid.  2.  That,  upon  such 
aiocounting,  the  said  defendant  was  then  and  there  found  to  be  indebted 
to  the  said  plaintiff  in  the  sum  of  dollars.  3.  That,  being  so  in- 
debted, the  said  defendant,  in  consideration  thereof,  then  and  there  under- 


Actions  11 

took  and  promised  the  said  plaintiff  to  pay  him  the  said  sima  of  money 
on  request.     4.  That  the  said  defendant,  etc. 

ACCOUNT  STATED 

Cros»-Iieferences:    PIjEading;  Assumpsit. 

Form  of  Notice  of  Account  Stated  and  Note  Given  Under  Plea  of  G-eneral 

Issue 

To  the  said  Plaintiff: 

You  will  please  take  notice  that,  on  the  trial  of  this  cause,  the  said 
defendant  will  give  in  evidence  and  insist,  in  his  defense:  1.  That,  after 
making  the  promises  and  undertakings  in  the  declaration  of  the  sai^  plain- 
tiff in  this  cause  mentioned,  and  before  the  commencement  of  this  suit, 

to   wit,   on    ,   at    ,   an  account   was   had  and  stated   by   and 

between  the  said  plaintiff  and  the  said  defendant,  of  and  concerning 
the  said  several  sums  of  money  in  the  said  declaration  mentioned.  2.  That, 
upon  that  occasion,  the  said  defendant,  was  then  and  there  found  in  arrear 

and  indebted  to  the  said  plaintiff  in  the  sum  of   dollars,  and  no 

more.     3.  That,  for  said  sum  of    dollars,  the  said  defendant  then 

and  there  made  and  delivered  to  the  said  plaintiff  his  certain  promissory 
note  in  writing,  a  copy  of  which  is  the  following:  (Here  insert  copy  of 
note.)      4.  That,    by   reason   thereof,   the    said   defendant    then   and   there 

became,  and  still  is,  liable  to  pay  the  said  sum  of dollars,  in  the 

said  promissory  note  mentioned,  according  to  the  tenor  and  effect  thereof. 

K.  L., 
Attorney  for  Defendant. 

ACTIONS 

§    1.  What  a  suit  or  action  is. 

§    2.  Classification  as  criminal  or  civil. 

§    3.  Real  actions. 

§    4.  Personal  actions. 

§    5.  Mixed  actions. 

§    6.  What  actions  relating  to  real  property  are  in  use  in  Michigan. 

§    7.  Abolition  of  classification  as  real,  personal  or  mixed. 

§    8.  Classification  and  forms  of  personal  actions. 

§    9.  Effect  of  Judicature  Act  on  forms  of  action. 

§  10.  Actions   as    ex   contractu   or   ex   delicto. 

§  11.  Waiver  of  objection  to  form  of  action. 

§  12.  ■  Amendment  to  cure  mistake  as  to  form  of  action. 

§  13.  Division  of  actions  into  legal  and  equitable. 

S  14.  Transfer  of  equitable  causes  to  law  side  of  court  and  vice  versa. 

§  15.  Proceedings  to  obtain  declarations  of  rights  and  for  the  construction 
of  instruments. 


12  Actions  §  1 

Cross-Eeferences:  Another  Action  Pending;  Joinder  and  Splitting 
or  Causes  of  Action;  Commencement  of  Actions;  Consolidation  of 
Actions;  Abatement;  Discontinuance;  Venue;  Change  of  Venue; 
Limitation  of  Actions;   Election  of  Eemedies. 

Particular  actions,  see  Assumpsit;  Case;  Trover;  Trespass  on  Lands; 
Ejectment;   Mandamus;   etc. 

§  1.  What  a  suit  or  action  is. 

The  proceeding  by  which  a  party  seeks  to  establish  in 
court  his  title  to  the  remedy  prescribed  by  law  for  the 
particular  injury  which  he  claims  to  have  sustained  is 
called  a  ''suit"  or  ''action."  An  action  has  also  been 
defined  as  "the  lawful  demand  of  one's  right";  ^  or,  in 
the  words  of  Justinian,  "jus  prosequendi  in  judicio  quod 
alicui  debetur";^  or,  as  an  established  form  or  mode  of 
litigation,  consisting  of  proceedings  in  a  court  of  justice 
and  having  for  its  object  the  attainment  of  some  legal 
remedy.' 

§  2.  Classification  as  criminal  or  civil. 

Actions  are  either  criminal  or  civil.  A  criminal  action 
is  one  prosecuted  by  the  people  of  the  state  against  a  per- 
son charged  with  a  public  offense,  for  the  punishment 
thereof.*  A  civil  action  is  one  brought  to  establish,  re- 
cover or  enforce  a  private  right  or  to  obtain  redress  for, 
or  prevent,  a  private  wrong.®  The  term  "civil  action" 
includes  not  only  actions  at  law  and  suits  in  chancery, 
but  also  proceedings  in  admiralty  and  other  proceedings 

IMir.   eh.    2,   sec.    1;    3    Cooley's  4  8   Am.   &  Eng.   Enc.   Law    (2nd 

Bl.  Comm.  116;   Hall  v.  Decker,  48  ed.)    252;   Landers  v.   Staten  Island 

Me.   255;    Bradford  v.  Southern  R.  R.  Co.,  53  N.  Y.  450;  Ex  parte  Tom 

Co.,  195  U.  S.  243;  In  re  Oliver,  77  Tong,  108  U.  S.  556. 

Ohio  St.  474.  6  For    other    definitions,    see    Mc- 

2  Inst.   4,   6,  pr.;    3    Cooley's  Bl.  Pike  v.   McPike,   10  ID.   App.  334; 

Comm.   116;    McBride's  Appeal,   72  State  v.   Judge,    15   La.   Ann.   192; 

Pa.  St.  480.  Thrift  v.  Thrift,  30  R.  I.  357;  West- 

3 1    Burrill,    Prac.    2.      See    also  em   Union    Tel.    Co.    v.    Taylor,    84 

Cohens   v.   Virginia,    6   Wheat.    (U.  Ga.  408;  Whitney  v.  Atlantic  South- 

S.)   264;  Cyc.  Law  Diet.,  tit.  "Ac-  ern  R.  Co.,  53  Iowa  651. 
tion." 


§  4  Actions  13 

involving  right  of  property,  and  is  employed  in  contradis- 
tinction to  ' '  criminal  actions. ' '  ^  The  word  ' '  actions, ' '  as 
used  in  a  statute,  has  been  held  to  include  both  civil  and 
criminal  actions."' 

§  3.  Real  actions. 

At  the  common  law,  civil  actions  were  classified  as  real 
actions,  personal  actions  and  mixed  actions.  Real  ac- 
tions, or,  as  they  were  called  in  the  Mirror,  "feudal 
actions,"  concerned  real  property  only,  being  such  where- 
by the  plaintiff,  called  the  ' '  demandant, ' '  claimed  title  to 
have  any  lands  or  tenements,  rents,  commons  or  other 
hereditaments  in  fee  simple,  fee  tail  or  for  teiTQ  of  life ; ' 
or,  as  it  is  otherwise  said,  they  were  those  brought  for  the 
specific  recovery  of  lands,  tenements  or  hereditaments.® 
By  these  actions,  formerly  all  disputes  concerning  real 
estate  were  decided,  but  they  were  gradually  laid  aside 
in. practice  upon  account  of  the  great  nicety  required  in 
their  management  and  the  inconvenient  length  of  their 
process,  much  more  expeditious  methods  of  tiying  titles 
being  introduced  by  other  actions,  personal  or  mixed. 

§  4.  Personal  actions. 

Personal  actions  are  those  whereby  a  man  claims  a  debt 
or  personal  duty  or  damages  in  lieu  thereof;  and  likewise 
whereby  a  man  claims  a  satisfaction  in  damages  for  some 
injury  done  to  his  person  or  property.  The  former  are 
said  to  be  founded  on  contracts,  the  latter  upon  torts  or 
wrongs.  Of  the  former  kind  are  all  actions  upon  debt  or 
promises;  of  the  latter,  all  actions  for  trespasses,  nui- 
sances, assaults,  defamatory  words  and  the  like.^° 

6  Wiscart  V.  Dauchy,  3  Dall.  (Pa.)  7  In   re   Adlor,   171   Mich.   263. 

328;    Scott  v.   Smart's  Executors,   1  8  3  Cooley's  BI.  Comm.  116. 

Mich.   295;    Coatsworth   v.   Barr,   11  9  Steph.  PI.  39;  Linseott  v.  Fuller, 

Mich.   199.  57  Me.  406;   Hall  v.  Decker,  48  Me. 

Mandamus      is      a     civil      action.  255. 

Woodworth  V.  Old  Second  Nat.  Bank,  10  3  Cooley's  Bl.  Comm.  117. 
144  Mich.  338. 


14  Actions  §  4 

Personal  actions  are  those  brought  for  the  specific  re- 
covery of  goods  and  chattels,  or  for  damages  or  other 
redress  for  breach  of  contract  or  other  injuries  of  what- 
ever description,  the  specific  recovery  of  lands,  tene- 
ments and  hereditaments  only  excepted." 

§  5.  Mixed  actions. 

Mixed  actions  are  suits  partaking  of  the  nature  of  both 
real  and  personal  actions,  being  such  wherein  some  real 
property  is  demanded,  and  also  personal  damages  for  the 
wrong  sustained. 

§  6.  What  actions  relating  to  real  property  are  in  use  in 
Michigan. 

In  Michigan,  all  writs  of  right,  writs  of  dower,  writs 
of  entry  and  writs  of  assize,  all  fines  and  common  recov- 
eries and  all  other  real  actions  known  to  the  common  law, 
not  enumerated  and  retained  in  chapter  thirty-three  of 
the  Judicature  Act,  and  all  writs  and  other  process  for- 
merly used  in  real  actions,  which  are  not  specially  re- 
tained in  that  chapter,  are  abolislied.^^  The  effect  of  this 
is  that  there  are  now  no  real  actions  in  use  in  this  state. 
The  action  of  ejectment,  which  is  a  mixed  action,  is  re- 
tained, but,  of  the  strictly  personal  actions  formerly  class- 
ified as  actions  relating  to  real  estate,  all  have  been 
abolished  except  that  of  trespass  on  the  case  for  waste. 
Trespass  on  the  case  or  assumpsit  is  now  the  appro- 
priate form  of  action  for  all  trespasses  upon  land,  includ- 
ing not  only  those  for  which  trespass  quare  clausum  was 
the  proper  remedy,  but  also  those  which  required  the  use 
of  the  statutory  action  of  trespass. 

llSteph.  PI.  39;  Osborn  v.  Fall  Laws  1915,  §13374.  Suits  for  par- 
River,  140  Mass.  508;  Linscott  v.  tition  of  lands  owned  by  several  are 
Fuller,  57  Me.  406;  Farrington  v.  the  subject  of  equity  jurisdiction. 
Freeman,  2  Edw.  (N.  Y.)  572.  Jud.  Act,  ah.  31,  §2;   Comp.  Laws 

12Jud.   Aet,  eh.  33,   §17;    Comp.  1915,  §13259. 


§  9  Actions  15 

§  7.  Abolition  of  classification  as  real,  personal  or  mixed. 

In  Michigan,  the  classification  of  actions  as  real,  per- 
sonal or  mixed  no  longer  obtains,  civil  actions  at  law  be- 
ing now  classed  by  statute  simply  as  either  equitable  ac- 
tions or  actions  at  law.^^ 

§  8,  Classification  and  forms  of  personal  actions. 

Personal  actions  are  in  form  either  ex  contractu  or  ex 
delicto,  or,  in  other  words,  are  either  for  breach  of  con- 
tract or  for  wrong  unconnected  with  contract.  Those 
upon  contracts  in  modern  use  in  the  United  States  are 
principally  assumpsit,  debt,  covenant  and  detinue,  and 
those  for  wrongs  are  case,  trover,  replevin  and  trespass  vi 
et  annis.  The  old  actions  of  account  and  annuity  have 
long  since  passed  into  disuse  in  this  country  and  possess 
so  little  present  importance  that  they  may  be  dismissed 
with  the  bare  mention  of  their  ancient  existence  as  modes 
of  procedure  whose  fields  of  usefulness  are  now  occupied 
by  the  other  forms  of  personal  actions.  Of  these,  the  only 
ones  which  now  survive  in  the  state  of  Michigan  are  as- 
sumpsit, case  and  replevin,  ejectment  being  in  strictness 
a  mixed  action.^* 

§  9.  Effect  of  Judicature  Act  on  forms  of  action. 

The  Judicature  Act  abolishes  all  forms  of  actions  at 
law  except  (1)  assumpsit,  (2)  trespass  on  the  case,  (3) 
replevin,  (4)  ejectment,  (5)  certiorari,  (6)  mandamus, 
;ind  (7)  quo  warranto.'^®  It  then  goes  on  to  provide  that 
' '  in  all  cases  where  the  actions  of  covenant  or  debt  would 
be  otherwise  maintainable,  the  action  of  assumpsit  shall 
hereafter  be  brought,  and  in  all  cases  where  actions  of 

13  Jud.  Act,  ch.  11,  §  1 ;  Comp.  The  distinction  between  trespass 
Laws  1915,  §  12350.  and  trespass  on  the  case  was  abol- 

14  Jud.  Act,  ch.  33,  §  7 ;  Comp.  ished  in  1905.  See  Pesola  v.  Fors- 
Laws  1915,  §  13364.  ten,  182  Mich.  94,  96. 

16  Jud.    Act,    ch.    11,    SI;    Comp. 
Laws  1915,  §  12350. 


16  Actions  §  9 

trespass  or  trover  would  be  otherwise  maintainable,  the 
action  of  trespass  on  the  case  shall  be  brought,"  pro- 
vided that  in  certain  cases  a  tort  may  be  waived  and  as- 
sumpsit brought. ^^  As  said  by  Professor  Sunderland, 
**  assumpsit  thus  becomes  the  universal  contractual  rem- 
edy and  case  the  universal  tort  remedy,  so  far  as  damages 
are  concerned, ' '  "  Further  on,  the  elf  ect  of  the  Judica- 
ture Act,  as  to  personal  actions,  is  well  stated  by  him  as 
follows:  "The  Judicature  Act  did  not  contemplate  the 
withholding  of  any  remedy.  What  it  really  did  was  not 
to  abolish  four  actions  and  retain  two.  It  abolished  all 
the  common  law  actions  for  the  recovery  of  damages  and 
in  their  place  it  substituted  two  entirely  new  actions 
called  'trespass  on  the  case'  and  'assumpsit.'  It  divided 
all  causes  of  action  for  damages  into  two  classes,  those 
based  on  contract  and  those  based  on  tort,  and  declared 
that  the  former  should  be  called  '  case '  and  the  latter  *  as- 
sumpsit. '  In  doing  so  it  employed  a  common  but  always 
misleading  method — it  used  old  terms,  teniis  which  had 
been  worked  over  and  thought  over  for  centuries,  terms 
which  were  full  of  historical  significance  and  which  had 
become  intenvoven  into  the  very  fabric  of  the  common 
law,  and  decreed  that  henceforth  they  should  mean  some- 
thing entirely  different.  *  *  *  it  is  quite  plain  that  we 
have  not  retained  the  action  of  assumpsit  nor  the  action 
of  trespass  on  the  case.  We  have  not  retained  any  of  the 
common  law  actions  for  the  recovery  of  damages.  All 
are  gone,  partly  by  express  abolition,  partly  by  implied 
abolition.  In  the  place  of  six  old  actions  we  now  have 
two  new  ones.  If  they  had  been  called  'tort  action'  and 
'contract  action,'  no  one  would  have  been  confused  or 
misled.  They  would  have  carried  the  visible  badge  of 
novelty.    But  their  character  is  not  dependent  upon  their 

lejud.    Act,    ch.    11,    §2;    Comp.  1?  14  Mich.  Law  Rev.  383. 

Laws  1915,   §  12351. 

When    tort    may    be    waived,    see 
Assumpsit. 


§  10  Actions  17 

names.  They  are  just  as  new,  just  as  different  from  any 
of  the  common  law  actions,  as  though  the  old  names  had 
been  abandoned  also.  This  is  an  outstanding  feature  of 
the  Act  which  should  not  be  lost  sight  of.  Old  rules  and 
doctrines  of  assumpsit  and  case  can  no  longer  apply;  the 
historical  development  of  those  actions  no  longer  throws 
light  on  their  present  scope  and  meaning;  the  continuity 
is  gone;  the  bottles  are  old  but  the  wine  in  them  is  new. 
The  attempted  retention  of  assumpsit  and  case  was  doubt- 
less a  concession  to  the  prejudices  of  a  conservative  pro- 
fession. There,  has  always  been  a  strong  antipathy 
among  the  lawyers  of  this  State  to  code  pleading,  and 
nothing  which  too  closely  resembled  that  much  distrusted 
system  could  have  passed  the  legislature.  'Assumpsit' 
and  'trespass  on  the  case'  sounded  entirely  orthodox  and 
respectable,  and  exorcised  the  bogy  of  a  Code  defection. 
But  the  Code,  while  undoubtedly  subject  to  many  just 
criticisms,  is  entirely  sound  and  logical  on  the  point  here 
involved,  namely,  the  forms  of  personal  actions.  It  open- 
ly and  frankly  abolished  them  all  and  substituted  a  single 
action  in  their  place.  The  Judicature  Act  covertly,  but 
no  less  effectively,  has  abolished  them  all  and  substituted 
two  actions  in  their  place.  This  is  illogical  and  unneces- 
sary. One  action  will  equally  serve  the  purposes  of  two 
and  it  is  therefore  much  better.  If  the  old  actions  are  to 
go  why  not  provide  an  entirely  modem  substitute!  Why 
stop  short  in  the  process  of  simplification  f "  " 

§  10.  Actions  as  ex  contractu  or  ex  delicto. 

Even  in  the  so-called  code  states  which  have  abolished 
all  forms  of  action,  the  substantive  distinctions  between 
actions  based  on  a  contract  and  those  founded  in  tort,  still 
exist. ^^    And  in  many  cases  it  is  necessary,  in  applying 

18  14  Mich.  Law  Rev.  383,  384. 

19  Austin    V.    Eawdon,    44    N.    Y. 
63,   71. 

1  Abbott— 2 


18  Actions  §  10 

the  statutes  of  Michigan,  to  determine  whether  a  count  in 
a  declaration  is  based  on  contract  or  on  tort.  Generally 
little  difficulty  is  experienced,  but  in  some  cases  the  de- 
fendant's act  is  an  unlawful  interference  with  a  right 
created  by  contract  between  the  parties  and  also  with  a 
right  created  by  law,  or  it  is  on  the  border  line  between 
the  two,  and  here  it  is  necessary,  at  times,  to  determine 
whether  the  pleader  sets  forth  a  cause  of  action  ex  con- 
tractu or  one  ex  delicto.  Without  going  into  this  subject, 
attention  is  called  to  certain  Michigan  cases  cited  in  the 
note  below  which  deal  therewith.^" 

§  11.  Waiver  of  objection  to  form  of  action. 

If  assumpsit  is  brought  when  an  action  of  case  should 
have  been  brought,  or  vice  versa,  and  no  objection  to  the 
form  of  action  is  made  in  the  trial  court  until  all  the  evi- 
dence is  in,  it  has  been  held  that  the  objection  is  waived.^^ 

§  12.  Amendment  to  cure  mistake  as  to  form  of 

action. 

By  rule  of  court,  '4f  after  a  verdict  or  judgment  it  ap- 
pears in  any  action  that  an  action  of  assumpsit  should 
have  been  brought  where  an  action  of  trespass  on  the 
case  was  brought,  or  an  action  of  trespass  on  the  case  was 
brought  where  an  action  of  assumpsit  should  have  been 
brought,  a  new  count  in  assumpsit  or  trespass  on  the  case 
may  be  added  to  the  declaration  by  amendment  and  the 
verdict  and  judgment  shall  stand."  ^^ 

20  Churchill    v.    Howe,    186    Mich.  118  Mich.  219;  Ives  v.  Williams,  53 

107;    City   of   Kalamazoo   v.   Stand-  Mich.    636;    Thomas   v.    Schram,   52 

ard  Paper  Co.,  182  Mich.  476;  Man-  Mieh.  213;  Hoey  v.  Harty,  48  Mich, 

istee  Navigation  Co.  v.  Louis  Sands  191 ;   Carter  v.  Glass,  44  Mich.  154. 

S.  &  L.  Co.,  174  Mich.  1;  Arnold  v.  See  also  Cooley,  Torts  (3d  ed.)  155, 

WMte,    153    Mieh.    607;    Walker    v.  159. 

Mellish,  135  Mieh.  465;    Garland  v.  21  MeDonald  v.  Young,  198  Mich. 

Western  Union  Tel.  Co.,  118  Mich.  (520. 

369;    Ohureh  v.  Anti-Kalsomine  Co.,  22  Cir.   Ct.  Kule  22,   §4. 


§  14  Actions  19 

§  13.  Division  of  actions  into  legal  and  equitable. 

The  Judicature  Act  divides  civil  actions  into  (1)  equit- 
able actions  and  (2)  actions  at  law,'^^  and  then  provides 
that  **if  at  any  time  it  appear  that  a  suit  commenced  in 
equity  should  have  been  brought  as  an  action  on  the  law 
side  of  the  court,  or  if  it  appear  that  an  action  commenced 
on  the  law  side  of  the  court  should  have  been  brought  in 
equity,  it  shall  be  forthwith  transferred  to  the  proper 
side,  and  be  there  proceeded  with,  with  only  such  altera- 
tion in  the  pleadings  as  shall  be  essential."  ^* 

In  commenting  on  the  distinctions  between  law  and 
equity  proceedings,  and  the  attempt  to  abolish  them  in 
the  code  states.  Professor  Sunderland  calls  attention  to 
the  fact  that  it  has  not  been  found  practicable  to 
abolish  the  distinctions  between  the  two  (1)  in  regard  to 
mode  of  trial  (by  court  or  jury),  (2)  the  practice  on  ap- 
peal, (3)  the  relief  granted,  (4)  parties  to  actions,  and  (5) 
the  pleadings,  but  that  it  is  practicable  (a)  to  abolish 
limitations  on  the  jurisdiction  of  the  courts,  and  (b)  the 
consequences  of  commencing  a  law  action  in  the  chancery 
court  or  an  equity  action  in  the  law  court.^^ 

The  practice  in  actions  in  equity  is  not  within  the  scope 
of  this  work  but  reference  should  be  made  to  the  excellent 
work  of  Mr.  Stace  on  equity  practice  in  Michigan. 

§  14.  Transfer  of  equitable  causes  to  law  side  of 

court  and  vice  versa. 
As  will  be  observed  from  the  terms  of  the  statute  set 
forth  in  the  preceding  section,  the  plaintiff  is  not  entitled 
to  a.  transfer  of  his  suit  in  all  cases  when  it  appears  that 
he  cannot  maintain  it  on  the  side  of  the  court  on  which  he 
has  brought  it.    He  is  entitled  to  have  it  transferi'ed  only 

23  Jud.    Act,    cb.    11,    §  1 ;    Conip.  26  14  Mich.  Law  K«v.  273. 

Laws  1915,  §  12350. 

24 Jud.    Act,    eh.    11,    §2;    Comp. 
Laws  1915,  §12351. 


20  Actions  §  14 

when  it  appears  to  the  court  that,  if  he  has  a  cause  of 
action  at  all,  it  is  such  that  he  should  have  brought  his 
suit  on  the  other  side  of  the  court.  If  this  has  not  ap- 
peared, either  by  the  proofs  or  otherwise,  prior  to  the 
time  when  the  plaintiff  asks  the  court  to  transfer  the  suit, 
a  satisfactory  showing  to  that  effect  must  be  made  at 
that  time.  Under  the  former  practice,  when  the  plaintiff 
discovered  in  the  progress  of  the  cause,  either  through 
failure  or  other  unexpected  developments  in  the  proofs 
or  otherwise,  that  he  had  planted  his  suit  on  the  wrong 
side  of  the  court,  his  only  recourse  was  to  discontinue  the 
suit  and  start  a  new  action  on  the  right  side.  As  a  gen- 
eral rule,  this  could  be  done  without  undue  inconvenience 
or  loss  of  substantial  rights,  but  it  always  involved  some 
inconvenience  and  loss  of  considerable  time,  and,  in  some 
instances,  was  quite  impracticable,  owing  either  to  ques- 
tions arising  out  of  the  statutes  of  limitations  or  to 
changes  rendering  it  difficult  or  impossible  to  obtain 
service  of  new  process  upon  the  defendants  or  their  prop- 
erty. In  order,  therefore,  to  obviate  such  embarrassments 
where  they  might  arise  and,  in  general,  to  facilitate  the 
attainment  of  such  redress  as  the  plaintiff  should  have  for 
the  wrong  which  he  claims  to  have  suffered,  this  salutary 
statute  was  adopted  into  the  practice  of  this  state.  With 
this  statute  in  effect,  therefore,  a  bill  of  complaint  should 
never  be  dismissed  without  the  consent  of  the  plaintiff 
on  the  ground  that  he  has  an  adequate  remedy  at  law,^.^ 
nor  a  suit  at  law  when  it  appears  that  the  plaintiff  may  be 
entitled  to  relief  in  equity. 

It  is  held  that  the  order  is  not  discretionary,  and  that 
it  ''should  only  be  made  when  on  the  face  of  the  plain- 
tiff's declaration  or  a  consideration  of  all  the  proofs  it 

26  Goldsehmidt     Tliermit     Co.     v.  Power  &  Light   Co.,  208   Fed.   821; 

Primos  Chemical  Co.,  225  Fed.  769;  Herkscher  v.  Pennsylvania  Steel  Co., 

Corsicana  Nat.  Bank  v.  Johnson,  218  205  Fed.  377. 
Fed.    822;    United    States    v.    Utah 


§  15  Actions  21 

should  appear  to  the  trial  court  that  the  plaintiff  cannot 
recover  as  a  matter  of  law  in  the  action  as  brought  and 
a  verdict  must  be  directed  against  him. ' '  ^^* 

The  statute  does  not  purport  to  take  away  any  right 
which  the  plaintiff  had  under  the  former  practice,  but 
gives  him  a  right  to  proceed  in  a  manner  in  which  he 
formerly  could  not  do.  It,  therefore,  affords  a  plaintiff 
the  option,  when  he  discerns  the  futility  of  further  pro- 
ceeding with  his  suit  on  the  side  of  the  court  on  which 
it  has  been  brought,  either  to  discontinue  and  start  a  new 
action  or  to  have  the  existing  action  transferred  to  the 
proper  side.  And,  tlierefore,  just  as  he  cannot  be  com- 
pelled by  the  court  to  discontinue  his  suit,  but  is  entitled 
to  a  final  judgment  if  he  cares  to  risk  it,  so  likewise  the 
court  cannot  transfer  the  suit  against  the  wishes  of  the 
plaintiff. 

In  making  an  order  transferring  a  suit  from  one  side  of 
the  court  to  the  other,  the  court  should  include  such  direc- 
tions for  the  service  of  amended  pleadings  and  the  execu- 
tion of  such  other  preliminaries  as,  in  the  particular  situa- 
tion of  the  case  at  the  time  of  the  transfer,  may  be  neces- 
sary to  put  the  case  in  condition  to  be  proceeded  with  on 
the  side  of  the  court  to  which  it  has  been  transferred. 

§  15.  Proceedings  to  obtain  declarations  of  rights  and  for 
the  construction  of  instruments. 
It  is  provided  that  declarations  of  rights  and  determi- 
nations of  questions  of  construction  of  written  instru- 
ments may  be  obtained  by  ordinary  proceedings  at  law  or 
in  equity,  or  by  means  of  a  petition  on  either  the  law  or 
equity  side  of  the  court  as  the  nature  of  the  case  may 
require.^' 

26a  Lake   Superior   Brass  Foundry  27  Pub.  Acts  1919,  No.  150. 

Co.  V.  O'Brien,  176  N.  W.  409. 


22  Address 

ADDRESS 

The  address  or  argument  of  attorneys  before  the  jury 
(see  Trial;  Error,  Writ  of),  and  the  adding  of  the  ad- 
dress of  the  attorney  to  legal  papers  (see  Papers)  are 
noticed  elsewhere. 

ADJOURNMENTS 

Adjournments  of  terms  of  court  (see  Courts,  §11; 
Circuit  Courts),  of  the  trial  (see  Continuances),  of  exe- 
cution sales  (see  Executions),  on  taking  depositions  (see 
Depositions),  in  summary  proceedings  to  recover  land, 
(see  Summary  Proceedings,  etc.),  and  the  like,  are  all 
considered  in  later  articles. 

ADMINISTRATORS 

What  little  is  included  in  this  work  as  to  administra- 
tors is  referred  to  under  the  head  "Executors  and  Admin- 
istrators. ' ' 

ADMIRALTY 

This  branch  of  the  law  is  not  within  the  scope  of  this 
work.  Attention,  however,  is  called  to  the  recent  case  of 
Gordon  v.  Drake,  193  Mich.  64,  involving  the  question  of 
jurisdiction  of  maritime  torts  as  between  the  state  and 
federal  courts. 

ADMISSIONS 

The  effect  of  admissions  in  pleadings  (see  Pleading), 
of  service  of  papers  (see  Service  of  Papers),  in  disclosures 
by  garnishees  (see  Garnishment),  in  quo  warranto  (see 
Quo  Warranto)  or  mandamus  (see  Mandamus)  suits,  etc., 
is  all  stated  in  subsequent  articles  in  this  work. 

ADVERSE   POSSESSION 

This  subject  is  not  within  the  scope  of  this  work  but  is 
treated  of  to  a  limited  extent  as  affecting  the  statute  of 


Affidavit  of  Merits  23 

limitations  (see  Limitation  of  Actions).  Title  by  adverse 
possession  is  ordinarily  sufiScient  to  maintain  an  action 
of  ejectment  (see  Ejectment)  or  for  trespass  on  land  (see 
Trespass  on  Land). 

ADVERTISEMENT 

See  Mortgages   (foret'losure  by  advertisement) ;   Publication. 

ADVICE  OF  COUNSEL 

See  Contempt;  Malicious  Prosecution. 

AFFIDAVIT  OF  MERITS 

Cross-references:    Pleadings;  Defaults;  Judgments. 

By  rule  of  court,  when  an  affidavit  of  merits  is  neces- 
sary,^ it  shall  be  made  by  the  defendant,  his  agent  or  at- 
torney, having  personal  knowledge  of  the  facts,  and  shall 
set  forth  that  the  defendant  has  a  good  and  substantial 
defense  to  the  plaintiff's  action  (or  to  a  portion  thereof) 
upon  the  merits  as  the  deponent  verily  believes,  and  it 
shall  appear  in  the  affidavit  that  the  facts  pertaining  to 
the  action  have  been  fully  and  fairly  stated  to  the  de- 
fendant's counsel,  naming  him,  and  that  the  defendant 
upon  such  statement  has  been  advised  by  such  counsel 
that  he  has  a  defense  to  the  action  (or  to  some  portion 
thereof)  upon  the  merits.^  If  made  by  the  attorney,  it 
must  contain  a  sufficient  excuse  for  not  being  made  by  the 
defendant.  In  construing  an  early  statute  practically  the 
same  as  this  rule  of  court,  it  is  held  that  whether  the  affi- 

1  See  Defaults,  §  9  (affidavit  on  after  such  statement,  that  he  has  a 
motion  to  set  aside  default) ;  Judg  full  and  complete  defense  upon  tlie 
ments,  §  14a;  Pleading.  merits,  and  that  he  verily  believes 

2  Cir.  Ct.  Rule  34.  such  advice  to  be  true,  was  held  suf- 
An  affidavit  made  by  a  defendant      ficient.     If  the  affidavit  is  made  in 

and  stating  that  he  has  fully  and  good  faith  and  contains  all  the  sub- 
fairly  stated  his  case  to  his  counsel  stantial  essentials,  it  is  suffieitMit. 
and  has  been  advised  by  his  counsel,       Wolls  v.  Booth,  35  Mich.  424. 


24  Affidavit  of  Merits 

davit  be  made  by  the  party,  agent  or  attorney,  it  must  be 
based  on  affiant 's  own  knowledge  and  not  on  information 
and  belief.^  The  affidavit  is  amendable,*  and  it  seems  that 
the  court,  in  a  proper  case,  may  permit  the  filing  of  such 
an  affidavit  nunc  pro  tunc  ^  after  the  time  prescribed  for 
filing  the  affidavit.® 

Form  of  Affidavit  of  Merits 

(Title  of  court  and  cause.) 
County  of   ,  ss. 

C.  T>.,  the  abo^'C  named  defendant,  being  duly  sworn,  deposes  and  says 
that  he  has  fully  and  fairly  stated  the  facts  pertaining  to  this  action  to 

J.  K.,  his  counsel  herein,  who  resides  in  the    of    ,  and   that 

he  has  a  good  and  substantial  defense  to  said  action  (or  to  some  portion 
thereof)  upon  the  merits,  as  he  is  advised  by  his  said  counsel,  upon  such 
statement  as  aforesaid,  and  verily  believes. 

C.  D. 

Subscribed,  etc. 

If  an  affidavit  of  merits  is  filed  to  prevent  a  summary 
judgment  in  an  action  on  a  contract  or  judgment  or  stat- 
ute, it  must,  in  addition  to  what  is  required  to  be  stated 
in  ordinary  affidavits  of  merits,  state  whether  or  not  the 
defense  claimed  applies  to  the  whole  of  the  plaintiff's 
claim,  and  if  it  does  not,  it  must  state  definitely  what 
item  •r  items  of  the  plaintiff's  claim,  and  the  amount 
thereof,  is  admitted.' 

AFFIDAVITS 

§  1.  Definition. 

§  2.  Necessity  for. 

§  3.  Entitling. 

§  4.  Venue. 

§  5.  Signature. 

§  6.  Jurat. 

§  7.  Who  may  make,  and   showing  as  to  authority. 

3  Brown  v.  Cowee,  2  Doug.  4.32.  6  Bitzer  v.  Wagar,   8.3  Mich.   223. 

4  Wells  V.  Booth,  35  Mich.  424.  ^  See  Judgments,  §  14a. 
6  Van   Slyke  v.  Rooks,  181   Mich. 


§  3  Affidavits  25 

§    8.  Who  may  take. 

§    9.  Copies  of  affidavits. 

§  10.  Affidavits  taken  outside  the  state. 

§  11.  Second  use. 

Cross-Beferences:  Papers  and  Notices;  Oaths;  Publication;  Mo- 
tions, EuLEs  AND  Orders;  Affidavit  op  Merits;  Supreme  Court. 
Particular  affidavits,  see  Attachment,  Replevin,  Garnishment,  Nevf 
Trial,  etc.  Affidavits  in  connection  with  declaration  or  plea,  see 
Pleading. 

§  1.  Definition. 

An  affidavit  is  a  declaration  on  oath,  in  writing,  sworn 
to  by  a  party  before,  and  attested  by  some  person  who  has 
authority  to  administer  oaths.'^ 

§  2.  Necessity  for. 

An  affidavit,  or  other  competent  evidence,  is  necessary 
where  any  part  of  the  ground  of  a  motion  consists  of  an 
extrinsic  fact  not  apparent  on  the  face  of  the  proceed- 
ings.^ 

§3.  Entitling. 

The  rules  as  to  entitling  papers  in  general,  as  contained 
in  the  Circuit  Court  Rules  and  stated  in  another  article,^ 
apply  equally  well  to  affidavits.  They  must  be  entitled 
in  the  court  and  cause,  except  where  they  are  annexed  to 
and  refer  to  another  paper  which  is  properly  entitled  in 
the  court  and  cause,*  and  except  where  no  action  is  pend- 
ing at  the  time.^  However,  an  affidavit  actually  filed  in  a 
pending  suit  and  not  entitled  is  not  a  nullity,  and  the 
court  may  permit  it  to  be  used;  ^  and  an  affidavit  entitled 

1  People  V.  Burns,  161  Mich.  169,  B  Hatch  v.  Saunders,  66  Mich.  185; 
175.                                                                Beebe    v.    Morrell,    76    Mich.    119; 

2  Storey  v.  Child,  2  Mich.  107.  Clarke  v.  Wayne  Circuit  Judge,  193 
8  See  Papers  and  Notices.  Mich.  33,  37. 

*Cir.  Ct.  Rule  3,   §2;   Glinnan  v.  6  Beebe  v.   Morrell,  76  Mich.   114, 

Judge     of     Recorder's     Court,     181  119,  approved  in  Doane  v.  Allen,  172 

Mich.    192;    Doane    v.    Allen,    172  Mich.  686, 
Miclh.  686,  690. 


26  Affidavits  ^  3 

ill  a  cause  is  not  a  nullity  merely  because  there  is  no  ac- 
tion pending  where  made  to  be  used  in  a  pending  action 
and  Avhere  so  used.''^ 

§4.  Venue. 

All  affidavits  should  commence  with  a  statement  in  the 
margin,  of  the  county  or  venue  in  which  they  are  made, 
thus:  ''Wayne  county,  ss."  But  an  affidavit  sworn  to 
before  a  notary  is  not  invalid  because  it  fails  to  show  the 
county  where  the  oath  was  administered.* 

§  5.  Signature. 

The  affidavit  ought  regularly  to  be  subscribed  by  the 
party  making  it,  either  by  signing  his  name,  if  he  can 
write,  or  by  making  his  mark,  if  he  cannot.  But  this  has 
been  held  not  to  be  actually  essential,  it  being  deemed 
sufficient  if  it  begin  with  the  deponent's  name,  and  appear 
to  have  been  sworn  to  before  a  proper  officer.^ 

§6.  Jurat. 

The  jurat  is  written  at  the  foot  of  the  affidavit,  on  the 
left  hand,  and  is  generally  in  the  following  form :  ' '  Sub- 
scribed and  sworn  to  this — day  of — A.  D.  19 — ,  before  me, 
Pj.  P.  H.,  circuit  court  commissioner,"  or  "notary  pub- 
lic," etc.  Notaries  public  must  affix  to  each  affidavit,  de- 
position, certificate  and  acknowledgment  given  or  taken 
by  them,  and  to  all  other  instruments  signed  notarially, 
tlio  date  upon  which  their  commissions  expire.  It  has 
been  held  that  it  must  appear  by  the  jurat,  that  the  affi- 
davit was  sworn  to  before  the  officer  whose  name  is  sub- 
scribed to  it,  unless  it  be  signed  by  a  judge  of  the  court 
in  which,  or  by  the  officer  before  whom  it  is  to  be  used,^'' 

V  Clarke  v.  Wayne  Circuit  Judge,  cuit  Judge,  113  Mich.  381;   Bloom- 

193  Mich.  33,  37,  disapproving  dicta  ingdale  v.  Chittenden,  75  Mich.  305. 

in  Beebe  v.  Morrell,  76  Mich.  114.  10  In  re  Teaehout,  15  Mich.  346; 

8  Sullivan  v.  Hall,  86  Mich.  7.  Smart  v.  Howe,  3  Mich.  590.     But 

9  Wynkoop  v.  Grand  Traverse  Cir-  see  Dickinson  v.  Simondson,  25  Mich. 


§  7  Affidavits  27 

or  unless  it  appear  in  the  body  of  it,  that  it  was  sworn  to 
before  a  proper  officer.  The  jurat  must  be  signed."  If 
the  caption  of  the  affidavit  contains  the  county,  the  affi- 
davit is  not  invalid  because  the  name  of  the  county  for 
which  he  was  appointed  does  not  follow  the  signature  of 
the  notary." 

§  7.  Who  may  make,  and  showing-  as  to  authority. 

The  affidavit  may,  in  general,  be  made  by  the  party  or 
his  attorney,  or  by  a  third  person,  according  as  the  knowl- 
edge of  the  facts  rest  with  either  of  them;  but  when  the 
affidavit  relates  to  the  proceedings  in  a  cause,  it  ought  to 
be  made  by  the  attorney.  If  a  statute  requires  an  affidavit 
to  be  made  ''by  plaintiff  or  some  person  in  his  behalf," 
an  affidavit  made  in  the  name  of  one  person  as  plaintiff  is 
insufficient  where  a  writ  issues  thereon  in  favor  of  two 
plaintiffs. ^^ 

Where  the  statute  provides  that  an  affidavit  may  be 
made  by  the  party,  his  agent  or  attorney,  the  use  of  the 
word  ''agent"  or  "attorney"  alone  is  sufficient."  So 
where  an  affidavit  is  made  by  one  who  states  that  he  is 
plaintiff's  attorney,  the  legal  inference  is  that  it  is  made 
"on  behalf  of  plaintiff."  "  Where  the  statute  provides 
that  ' '  any  person  familiar  with  the  facts ' '  may  make  the 
affidavit,  it  need  not  recite  that  affiant  is  familiar  with  the 
facts. ^^  An  affidavit  in  an  action  by  a  corporation,  stat- 
ing that  the  affiant  is  the  treasurer  of  the  company,  suffi- 
ciently shows  his  authority  to  make  it.^''^  Where  the  name 
of  the  affiant  in  the  body  of  the  affidavit  differs  from  the 
signature,  the  name  in  the  body  should  be  disregarded.^* 

113,  and  compare  Peterson  v.  Fow-  15  Stringer  v.  Dean,  61  Mich.  196. 

ler,  76  Mich.  258.  16  Muirhead    v.   Sands,    111   Mich. 

11  Cross  V.  People,  10  Mioh.  24.  487. 

12  Smith  V.  Eunnells,  94  Mich.  617.  17  Forbes  Lithograph  Mfg.  Co.  v. 
iSBurnside  v.  Davis,  65  Mich.  74.  Winter,  107  Mich.  116. 
14Weatherwax   v.   Paine,   2   Mich.  18  Torrans  v.  Hicks,  .'!2  Mich.  n07. 

555. 


28  Affidavits  §  8 

• 

§  8.  Who  may  take. 

Affidavits  taken  in  this  state  may  be  sworn  to  before 
any  judge  or  clerk  of  a  court  of  record,  circuit  court  com- 
missioner, justice  of  the  peace,  or  notary  public,  or  before 
any  commissioner  specially  appointed  by  the  court  for 
that  purpose.*®  By  statute,  attorneys  and  counselors,  are 
not  allowed  to  administer  oaths  as  notaries  public  in  cases 
in  which  they  are  engaged  as  such  attorneys  or  counsel- 
ors ;  ^°  but  it  is  otherwise  where  not  prohibited  by  stat- 
ute.^* In  the  absence  of  a  statute,  the  clerk  of  court  can- 
not administer  oaths  or  take  affidavits  in  vacation.^'* 
Depositions  sworn  to  before  a  notary  may  be  received 
where  the  parties  stipulated  that  he  might  act  as  com- 
missioner.^^ 

§  9.  Copies  of  affidavits. 

Copies  of  affidavits  served  with  the  notice  of  motion 
must  be  true  and  complete,  and  if  essentially  defective 
the  motion  cannot  be  heard,  notwithstanding  the  original 
affidavit  is  sufficient,  the  omission  being  an  error  in  copy- 
ing.^* 

§  10.  Affidavits  taken  outside  the  state. 

The  statutes  expressly  provide  how  affidavits  taken 
without  the  state  must  be  authenticated  in  order  to  be  re- 
ceived in  judicial  proceedings  in  this  state. ^^ 

19Jud.    Act,    ch.    17,    §§83,    84;  another  state  of  the  United  States, 

Comp.  Laws  1915,  §§  12571,  12572.  or    in    any    foreign    country,    is    re- 

20  See  Attorneys  ;  Oaths.  quired,  or  may  be  received  in  judi- 

21  Snyder     v.     Hemmingway,     47  eial    proceedings    in    this    State,    to 
Mich.  549.  entitle  the  same  to  be  read,  it  must 

22  Greenvault     v.     Farmers '     Me-  be  authenticated  as  follows : 
chanics  Bank,  2  Doug.  498.  "1.  It   must   be   certified   by   the 

23  Crone  v.  Angell,  14  Mich.  340.  consul   general,    deputy   consul    gen- 

24  Ohesebro  v.  Ohesebro,  21   Mich.  eral,  or  some  consul  or  deputy  consul 
506.  of  the  United  States  resident  in  such 

26 "  In   cases   where   by   law   the      foreign  country,  to  have  been  taken 
aflB.davit   of  any   person  residing  in      and  subscribed  before  him,  specify- 


Agency 


29 


§  11.  Second  use. 

Unless  it  is  othenvise  provided  by  statute,  an  affidavit 
can,  it  seems,  be  used  a  second  time.^® 

AFFIRMANCE 

See  Error,  Writ  op;   Certiorari. 


AFFIRMATIVE  DEFENSES 


See  Pleading. 


See  Infants;   Jury. 


AGE 


AGENCY 

Cross-Beferences:  Affidavits  (affidavit  by  agent)  ;  Attachment  (affi- 
davit by  agent)  ;  Commencement  of  Actions  (who  may  be  served  with 
original  process). 


ing  the  time  and  place  where  taken 
and  have  the  consular  seal  attached; 
or 

"2,  It  must  be  certified  by  some 
judge  of  a  court  having  a  seal  to 
have  been  taken  and  subscribed  be- 
fore him,  specifying  the  time  and 
place  where  taken; 

"3.  The  genuineness  of  the  signa- 
ture of  such  judge,  the  existence  of 
the  court  and  the  fact  that  such 
judge  is  a  member  thereof,  must  be 
certified  by  the  clerk  of  the  court 
under  the  seal  thereof; 

"4.  If  such  affidavit  be  taken  in 
any  other  of  the  United  States  or 
in  any  territory  thereof,  it  may  be 
taken  before  a  commissioner  duly 
appointed  and  commissioned  by  the 
Governor  of  this  State  to  take  affi- 
davits therein,  or  before  any  notary 
public  or  justice  of  the  peace  author- 
ized by  the  laws  of  such  state  to  ad- 


minister oaths  therein.  The  signa- 
ture of  such  notary  public  or  justice 
of  the  peace,  and  the  fact  that  at 
the  time  of  the  taking  of  such  affi- 
davit the  person  before  whom  the 
same  was  taken  was  such  notary 
public  or  justice  of  the  peace,  shall 
be  certified  by  the  clerk  of  any  court 
of  record  in  the  county  where  such 
affidavit  shall  be  taken,  under  the 
seal  of  said  court. ' '  Jud.  Act,  ch. 
17,  §  14;  Comp.  Laws  1915,  §  12502. 

Absence  of  clerk's  certificate 
makes  affidavit  defective.  Metcalfe 
V.  Carr,  133  Mich.  123. 

There  is  no  presumption  of  au- 
thority of  notary  in  another  state  to 
administer  oaths.  Berkcry  v.  Wayne 
Circuit  Judge,  82  Mich.  160,  168, 
overruling  Pinkham  v.  Cockell,  77 
Mich.  265. 

26  Montgomery  v.  Muskegon  Cir- 
cuit Judge,  100  Mich.  436. 


30  Agency 

The  iDrincipal  may  sue  his  agent  for  negligence  or 
wrongful  acts.^  The  law  of  principal  and  agent  is  prac- 
tically all  substantive  law  which  is  ably  treated  of  by 
Professor  Mechem  in  his  well  known  work  on  Agency. 

State  Bar  Association  Form  of  Declaration  for  Failure  of  Agent  to  Follow 

Instructions 

(Title  of  court  and  cause.) 
The   plaintiff   says: 

1.  That,  on    ,   19..,  he   employed  the  defendant  to  purchase  for 

him,    if    practicable,    at    ,    10,000    bushels    of    best    May    wheat    at 

a  price  not  exceeding dollars  per  bushel. 

2.  That  the  defendant,  altHiough  he  could,  by  reasonable  diligence,  have 

pairehased   for   the    plaintiff    at    10,000    bushels   of   said   wheat    at 

a  price  not  exceeding  that   above  stated,  neglected  to   do   so. 

3.  That  the  defendant  purchased  only  5,000  bushels  of  May  wheat, 
and  3,000  bushels  of  that  so  purchased  was  of  inferior  quality. 

4.  Wherefore,  etc. 

Form  of  Count  Against  an  Agent  for  Not  Selling  Goods  Received  for 

Sale  as  Ordered 

The  plaintiff  says: 

1.  That  heretofore,  to  wit,  on    ,  at   ,  in   consideration  that 

the  said  plaintiff,  at  the  special  instance  and  request  of  the  said  de- 
fendant, for  commission  and  reward  to  the  said  defendant,  employed  the 

said  defendant  to  sell  for  the  said  plaintiff  certain  goods,  to  wit,    , 

of  great  value,  to  wit,  of  the  value  of    dollars,   upon   the  terms 

that  the  said  defendant  should  use  due  and  reasonable  care  and  diligence 
in  obeying  the  lawful  and  reasonable  orders  of  the  said  plaintiff,  to  be 
given  by  him  to  the  said  defendant  in  regard  to  the  sale  of  the  said 
goods,  and  the  said  defendant  received  and  had  the  said  goods  in  his 
possession  and  charge,  the  said  defendant  undertook  and  promised  the 
said  plaintiff  that  he  would  sell  the  said  goods  for  the  said  plaintiff, 
and  would  use  due  care  and  diligence  in  obeying  the  lawful  and  reason- 
able orders  of  the  said  plaintiff,  to  be  given  by  him,  the  said  plaintiff, 
to  the  said   defendant  in  regard  to  the  sale  of  the   said   goods.     2.  That 

the   said   plaintiff    afterwards,   to   wit,    on    ,    at    ,    and   while 

the  said  defendant  had  the  said  goods  in  his  possession  and  charge,  as 
aforesaid,  ordered  and  directed  the  said  defendant  to  sell  the  said  goods 

at  a  certain  price,  to  wit,  at  the  price  of    dollars,  and  not  less, 

in  ease  the  same  could  be  obtained  by  using  due  care  and  diligence  in 
that  behalf.  3.  That  the  said  defendant,  could,  by  using  due  care  and 
diligence  in  obeying  said  order  and  direction,  so  given  to  him,  as  afore- 

1  Cutter  V.  Powers,  200  Mich.  375 ; 
Hogue  V.  Wells,  180  Mich.  19;  Miller 
V.  Young,  196  Mkh.  27«. 


Agency  31 

said,  by  the  said  plaintiff,  Lave  obtained  the  said  price  for  the  said  goods. 
4.  That  the  said  defeudant  ueglected  to  sell  the  said  goods  in  accordance 
therewith.  5.  That,  by  reason  thereof,  the  said  plaintiff  -was  forced  to 
suffer  the  said  goods  to  be  sold  at  a  less  price  than  the  price  aforesaid, 
to  wit,  for  the  price  of  dollars.  6.  That  thereby  the  said  plain- 
tiff sustained  great  loss,  to  wit,  the  sum  of    dollars,  upon  and  in 

respect  of  the  price  and  value  of  the  said  goods.  7.  That  also,  by  reason 
thereof,  the  said  goods  were  wasted  and  deteriorated  in  value  to  a  great 
amount,  to  wit,  the  sum  of dollars.  8.  That  also,  by  reason  there- 
of,  the   said   plaintiff   incurred   great   expense,   to    wit,    dollar's,    in 

warehousing  and  keeping  the  said  goods. 

Form  of  Count  Against  Agent  for  Not  Accounting  for  Goods  Received 

to  SeU 

The  plaintiff  says: 

1.  That  heretofore,  to   wit,  on    ,  at    ,  in  consideration  that 

the  said  plaintiff,  at  the  special  instance  and  request  of  the  said  defend- 
ant,   delivered    to   the    said    defendant,    and   the    said    defendant   received 

from  the  said  plaintiff,  certain  goods,  to  wit,   ,  of  great  value,  to 

-wit,  of  the  value  of   dollars,  of  him,  the  said  plaintiff,  to  be  sold 

by  the  said  defendant,  the  said  defendant  undertook  and  promised  the 
said  plaintiff  to  sell  the  said  goods  for  and  on  account  of  the  said  plain- 
tiff, and  that  the  said  defendant  would,  when  requested,  render  to  the 
said  plaintiff  a  true  and  just  account  of  the  sale  of  the  said  goods,  and 
of  the  moneys  accruing  from  said  sale,  and  deliver  up  to  the  said  plain- 
tiff such  of  the  said  goods  as  should  remain  unsold  by  the  said  defend- 
ant, after  a  reasonable  time  from  the  sale  of  such  of  the  said  goods  as 

the   said   defendant   Should   sell.     2.  That,   afterwards,   to  wit,   on    , 

at    .......   the   said   defendant   sold   the   said   goods,   for   and   on   account 

of  the  plaintiff,  for  a  large  sum  of  money,  to  wit,  for  the  sum  of   

dollajs.  3.  That  a  reasonable  time  has  elapsed  since  the  sale  of  said 
goods  by  the  said  defendant  as  aforesaid.  4.  That  the  said  defendant 
has  not,  although  requested  so  to  do,  rendered  to  the  said  plaintiff  any 
account  of  the  sale  aforesaid  of  the  said  goods  or  of  the  moneys  accru- 
ing from  such  sale,  nor  has  the  said  defendant  delivered  up  to  tlie  said 
])laintiff  any  of  said  goods  remaining  unsold.  5.  That,  thereby  the  said 
plaintiff    lias   wholly   lost   the    said   goods   and   the   price   thereof,   to    wit, 

dollars,  for  which  the   same  were   sold   as   aforesiaid   by   the   said 

defendant. 

Form  of  Count  Against  an  Agent  Appointed  to  Sell  Goods  at  Stated  Prices 
for  Selling  Part  at  Less  Prices,  and  for  Not  Accounting  for  Those 
Sold,  and  Not  Delivering  Up  Those  Unsold 

The  plaintiff  says: 

1.  That  heretofore,  to  wit,  on    ,  at    ,  the  said  plaintiff,  at 

tlie    request    of    the    said    defendant,    employed    liim    for    commission    and 

reward   to   the   said   defendant,   to   sell   certain  goodp,  to  wit,    ,   of 

the  said  ]>laintiff,  of  great  value,  to  wit,  of  the  value  of    dollars. 


32  Agency 

at  and  for  certain  prices  respectively  to  be  stated  to  the  said  defendant 
by  the  said  plaintiff,  and  upon  the  terms  that  tlie  said  defendant  should 
render  to  the  said  plaintiff  a  just  and  true  account  of  the  sale  thereof 
and  should  deliver  to  the  said  plaintiff  such  of  the  said  goods  as  should 
remain  unsold  by  the  said  defendant,  when  thereunto  afterwards  requested 
by  the  said  plaintiff.  2.  That,  thereupon,  to  wit,  at  the  time  and  place 
last  aforesaid,  the  said  defendant  received  the  said  goods  and  chattels 
of  and  from  the  said  plaintiff,  and  then  and  there  undertook  and  prom- 
ised the  said  plaintiff  to  sell  the  said  goods  for  him  at  and  for  certain 
prices  respectively  to  be  stated  to  the  said  defendant  by  the  said  plain- 
tiff, and  that  he,  the  said  defendant,  would  render  to  the  said  plaintiff 
a  just  and  true  account  of  the  sale  thereof  and  would  deliver  to  the  said 
plaintiff  such  of  the  said  goods  as  should  remain  unsold  by  the  said 
defendant,  when  thereunto  requested  by  the  said  plaintiff.  3.  That  the 
said  plaintiff  stated  the  prices  of  the  said  goods  respectively  to  the  said 
defendant.     4.  That  the  said  defendant,  without  the  consent  of  the  said 

plaintiff,  sold  certain  of  the  said  goods,  to  wit, ,  at  a  much  smaller 

price  than  the  price  so  stated  to  him  by  the  said  plaintiff,  to  wit,   

5.  That  the  said  defendant  has  not,  although  afterwards  requested  by  the 
said  plaintiff  so  to  do,  rendered  to  the  said  plaintiff  any  account  of  the 
said  sales  or  delivered  up  to  the  said  plaintiff  such  of  the  said  goods  as 
remained  unsold.  6.  That  a  reasonable  time  from  the  delivery  of  the 
said  goods  to  the  said  defendant,  as  aforesaid,  and  the  time  of  the  said 
sales,  has  elapsed. 

Form  of  Count  Against  Del  Credere  Agent  on  His  Guaranty 

The  Plaintiff  says: 

1.  That  heretofore,  to  wit,  on    ,   at    ,  in  consideration  that 

the  said  plaintiff,  at  the  request  of  the  said  defendant,  employed  the 
said  defendant,  for  commission  and  reward  to  him  in  that  behalf,  to  sell 

and   dispose   of  certain   goods,  to  wit,    ,   of   great  value,   to   wit,   of 

the   value   of    dollars,   of   the   said   plaintiff,   upon   the   terms   that 

the  said  defendant  should  be  responsible  to  the  said  plaintiff  for  the 
price  of  said  goods,  if  sold,  when  the  same  should  become  due  upon  said 
sale,  and  the  said  plaintiff  delivered  the  said  goods  to  the  said  defendant, 
the  said  defendant  undertook  and  promised  the  said  plaintiff  that  he 
would  sell  and  dispose  of  the  said  goods,  and  that  he  would  be  responsible 
to  the  said  plaintiff  for  the  price  thereof,  if  the  said  defendant  should 
sell  the  same,  when  the  said  price  should  become  due  upon  such  sale  of 
said  goods,  as  aforesaid.  2.  That  afterwards,  the  said  defendant  sold 
and  disposed  of  the  said  goods  to  one  E.  F.,  for  a  large  price,  to  wit, 

the  sum  of   dollars,  to  become  due  on    3.  That  the  time 

when  said  price  for  the  said  goods  so  sold  to  the  said  E.  F.  became  due 
upon  said  sale  has  elapsed.     4.  That  the  said  E.  F.,  although  afterwards, 

to  wit,   on    ,   at    ,   thereunto   requested   by   the   said   plaintiff, 

has  not  paid  the  said  price,  or  any  part  thereof,  to  the  said  plaintiff, 
as  the   said   defendant  well  knew.     5.  That  the   said  defendant  has  not 


§  1  Agreements  and  Stipflations  33 

paid  the  said  svun  of  money,  or  any  part  thereof,  to  the  said  plaintiff, 
althougOi  requested  so  to  do. 

Form  of  Count  Against  Agent  for  Not  Using  Due  Care  and  Diligence  in 

Collecting  Moneys 

The  Plaintiff  says: 

1.  That  heretofore,  to   wit,  on    ,  at    .,   in  consideration  that 

the  said  plaintiff"  would  employ  the  said  defendant  as  his  agent  to  col- 
lect certain  moneys  owing  from  -divers  persons  to  the  said  plaintiff,  for 
commission  and  reward  to  the  said  defendant,  the  said  defendant  under- 
took and  promised  the  said  plaintiff  to  use  due  care  and  diligence  in 
endeavoring  to  collect  the  same  for  the  said  plaintiff.  2.  That  the  said 
plaintiff  employed  the  said  defendant  accordingly  for  the  purpose  and 
on  the  terms  aforesaid.  3.  That  a  reasonable  time  for  the  performance 
of  the  said  undertaMng  and  promise  by  the  said  defendant  elapsed  since 
the  making  thereof  and  the  employment  of  the  said  defendant  by  the 
said  plaintiff  as  aforesaid.  4.  That  the  said  defendant  did  not  use  due 
care  and  diligence  in  endeavoring  to  collect  the  said  moneys  for  the  said 
plaintiff.  5.  That  thereby  the  said  moneys  remain  imcoUected  and  the 
said  plaintiff  has  hitherto  been  deprived  of  tihe  use  of  the  same  and  is 
altogether  likely  to  lose  the  same. 


AGREED  CASE 


See  Case  Made. 


AGREEMENTS    AND    STIPULATIONS    BETWEEN 
PARTIES 

§  1.  In  general. 

§  2.  Necessity  for  writing. 

§  3.  Effect  of  oral  agreements. 

Cr OSS-Be ference:    Supreme  Ooxtbt  (agreements  in  supreme  court). 

§  1.  In  general. 

A  stipulation  is  defined  as  an  agreement  between  coun- 
sel respecting  business  before  a  court. ^  The  implied 
authority  of  attonieys  to  enter  into  stipulations  is  recog- 
nized,^  and  it  need  only  be  added  tliat  a  party  to  an  action 
who  has  retained  an  attorney  cannot  make  a  binding 

1  Anderson  L.  Diet. 

2  See  Attorneys. 

1  Abbott— 3 


34  Agreements  and  Stipulations  §  1 

stipulation  as  to  matters  of  procedure  without  the  consent 
of  his  attorney.' 

If  valid,  stipulations  are  binding  on  the  courts.*  They 
may  relate  to  many  different  things,  such  as  discontinu- 
ances, references,  bills  of  exceptions,  depositions,  etc.,  all 
of  which  are  more  particularly  treated  of  in  the  respec- 
tive articles  dealing  with  such  matters;  but  they  are  in- 
valid where  they  involve  the  validity  or  constitutionality 
of  a  statute.^ 

§  2.  Necessity  for  writing. 

It  frequently  happens  in  the  course  of  a  suit  that  the 
exigencies  of  the  case  render  desirable  some  special  agree- 
ment or  stipulation  between  the  parties  to  it  or  their  at- 
torneys, either  for  something  to  be  done  or  omitted  by 
one  party  or  the  other  or  both  of  them  in  connection  with 
the  suit,  or  for  some  relaxation  or  other  modification,  in 
the  particular  instance,  of  the  general  rules  and  course 
of  practice.  When  such  agreements  were  made  out  of 
court  and  were  merely  verbal,  misunderstanding  and  dis- 
putes occasionally  arose  in  regard  to  the  precise  terms 
and  conditions  which  had  been  thus  arranged  and  were 
sometimes  a  source  of  considerable  annoyance,  not  only  to 
the  parties  interested,  but  also  to  the  courts  in  which  they 
were  sought  to  be  enforced.  To  remedy  this  evil,  it  was 
deemed  wise  at  an  early  day  in  this  state,  as  well  as  in 
other  jurisdictions,  to  establish  a  rule  that  such  verbal 
agreements  should  be  no  longer  recognized  when  denied 
by  the  party  against  whom  they  were  alleged.  The  rule 
which  now  obtains  in  Michigan  upon  this  subject  is  that 

8  Jackson  v.    Cole,   81   Mich.  440,  6  People  v.  McElroy,  72  Mich.  466; 

stipulation  to  discontinue  case  after      Attorney  General  v.  Rice,  64  Mich, 
submission  on  appeal.  385. 

4  People  V.  Murray,  52  Mich.  288; 
People  V.  Kalamazoo  Circuit  Judge, 
39  Mich.  123. 


§  3  Agreements  and  Stipulations  35 

no  private  agreement  or  consent  between  the  parties  to  a 
cause  or  their  attorneys  respecting  the  proceedings  in  a 
cause,  which  is  denied  by  either  party,  will  be  binding 
unless  it  was  made  in  open  court  or  unless  evidence  there- 
of is  in  writing,  subscribed  by  the  party  or  his  attorney 
against  whom  it  is  alleged.^ 

§  3.  Effect  of  oral  agreements. 

Where  an  oral  agreement  not  made  in  open  court  is 
acted  upon  by  one  of  the  parties  in  good  faith,  but  is 
denied  by  the  other,  it  is  an  ordinary  exercise  of  the  power 
of  the  court,  upon  such  terms  as  appear  reasonable  and 
fair,  to  relieve  the  party  who  has  acted  in  good  faith 
against  the  consequences  of  the  misunderstanding;  "^  and 
it  seems  that  the  rule  on  this  subject  requiring  a  writing 
is  to  be  confined  strictly  to  such  agreements  as  relate  to 
the  proceedings  in  the  suit  and  that  it  does  not  apply  to 
such  as  effectually  terminate  it.  Thus,  it  has  been  held  in 
New  York,  under  a  similar  rule,  that  an  agreement  to  dis- 
continue a  suit  need  not  be  in  writing.*  So,  also,  it  has 
been  held  in  New  York  that  an  oral  agreement  between 
the  attorneys  that  judgment  pass  for  a  certain  sum,  being 
in  effect  a  compromise  of  a  liquidated  claim,  is  binding 
on  the  parties,  even  though  made  under  a  mistake  of 
law ;  ^  but  even  in  cases  of  this  sort,  agreements  should,  as 
a  matter  of  safe  practice,  if  not  of  strict  requirement,  be 
embodied  in  writing  and  subscribed  by  the  parties,  where 
not  made  in  open  court. 

6Cir.    Ct.    Rule    4;    Sudworth    v.  7  Scott  v.  Scott,  5  Mich.   106;    C. 

Morton,    137    Mich.    575.      See    also  J.    Huebell   Co.   v.  MacKinnon,   186 

Suydam    v.     Dequindrc,     Walk.     eh.  Mich.  617,  624. 

23;   Brooks  v.  Mead,  Walk.  ch.  389.  8  Gaillard   v.    Smart,   6    Cow.    (N. 

Where  there  are  two  or  more  at-  Y.)  385. 

torncys  of  record   for  a  party  in  a  9  Montgomery  v.  Ellis,  6  How.  Pr. 

cause,    the  agreement    of   either    of  (N.  Y.)    326. 
them  is  binding  upon  them  all.    Peo- 
ple V.  Bussey,  80  Mich.  SO^. 


36  Alias  Weits 

ALIAS  WRITS 

See  Commencement  of  Actions;  Attachment;  Replevin;  Execu- 
tions;  etc. 

ALIENS 

An  alien  enemy  may  sue  in  this  countiy,  under  some 
circumstances  (see  Mittelstadt  v.  Kelly,  202  Mich.  524). 
They  are  not  qualified  as  jurors  (see  Jury)  and  the  stat- 
ute of  limitations  is  affected  by  non-residence  ( see  Limi- 
tation of  Actions). 

ALTERNATIVE  WRIT 

See  Mandamus. 

AMENDMENTS  AND  DEFECTS  CURED  BY 
VERDICT 

§    1.  Scope  of  article. 

§    2.  Statutory  provisions  in  general. 

§    3.  Amendments  by  leave  of  court  before  judgment. 

§    4.  Nature    of   power    of    allowing    amendments    and   how   it    should    be 

exercised. 
§    5.  Amendments   after   judgment. 

§    6.  Process,  pleadings  and  records  to  be  amended  only  by  order  of  court. 
§    7.  Amendment  of  returns. 
§    8.  Amendment  of  bonds. 
§    9.  Disregarding  errors  or  defects. 

§  10.  Defects  cured  by  verdict At  common  law. 

§  11.  By  statute. 

§  12.  Application  to  amend. 

§  1.3.  As  affecting  third  persons. 

Cross-references :  Pleiadings  (amendment  of  pleadings)  ;  Bill  of 
Particulars;  Verdict  and  Findings;  Judgment;  Error,  Writ  of 
(amendment  of  record);    Bill  of  Exceptions. 

Amendment  of  particular  affidavits,  see  Attachment,  Replevin,  Gar- 
nishment, etc.  Amendment  of  particular  writs,  see  Attachment,  Com- 
mencement op  Action. 

§  1.  Scope  of  article. 

This  article  treats  of  nmendments  and  matters  Avhich 
need  not  he  amended,  in  general  and  as  a  whole.    Amend- 


§  3     Amendments  and  Defects  Cubed  by  Verdict       37 

ment  of  pleadings,  although  governed  to  some  extent  by 
these  general  rules,  are  considered  in  another  article,^  as 
are  amendments  of  bills  of  particulars.^ 

§  2.  Statutory  provisions  in  general. 

Chapter  16  of  the  Judicature  Act  is  entitled  *'0f  the 
Statute  of  Amendments,"  and  it  is  expressly  provided 
that  all  the  provisions  of  the  chapter  shall  extend  to  all 
actions  and  proceedings  in  courts  of  law  and  equity.* 

The  statute  of  amendments  is  the  basis  of  all  modern 
relaxation  of  rules  of  practice ;  and  its  manifest  object  is 
to  give  parties  who  are  met  with  curable  objections  on  a 
trial  the  right  of  amendment  on  reasonable  terms,  and  to 
make  a  verdict,  where  no  point  has  been  previously  made 
at  all,  valid  to  rectify  all  defects  that  are  not  so  radical 
as  to  leave  nothing  to  amend,  and  to  treat  the  record  as 
if  it  had  been  actually  amended.* 

§  3.  Amendments  by  leave  of  court  before  judgment. 

If  a  party  does  not  avail  himself  of  the  right  to  amend 
of  course  within  the  time  limited  therefor  by  the  rule,  the 
right  is  gone  and  he  cannot  thereafter  amend  without  the 
leave  of  the  court  therefor  first  obtained.*  The  court, 
however,  in  which  any  action  or  proceeding  is  pending 
has  the  power  to  amend  any  "process,  pleading  or  pro- 
ceeding" in  the  action  or  proceeding,  either  in  form  or  in 
substance,  for  the  furtherance  of  justice,  on  such  terms 
as  are  just,  at  any  time  before  judgment  has  been  ren- 
dered therein.^  The  matter  of  allowing  amendments  is 
one  which,  in  general,  lies  within  the  sound  discretion  of 
the  court,  whose  action  in  respect  to  it  will  not  be  re- 

1  See  Pleading.  6  People     v.     Washtenaw     Circuit 

2  See  Bill  of  Particulars.  Judges,  1  Doug.  434. 

3Jud.    Act,    Ph.    16,    §8;    Comp.  6  Jud.    Act,    eh.    16,    §1;    Comp. 

Laws  1915,  §12485.  Laws  1&15,  §12478;   Crane  Lumber 

♦  Sohindler  v.   Milwaukcr,   oic.   R.  Co.  v.  RplJows,  116  Mich.  .'{04. 
Co.,  77  Mich,  l.-^fi,  1.54. 


38      Amendments  and  Defects  Cueed  by  Verdict     §  3 

viewed  in  the  appellate  court,  except  in  case  of  abuse.' 
Yet  the  statute  is  one  which  should  be  construed  with 
liberj^lity,  so  that,  in  general,  if  an  amendment  asked  for 
will  be  in  furtherance  of  justice  and  neither  surprises  nor 
deprives  a  party  of  essential  rights,  it  ought  to  be  al- 
lowed." 

§  4.  Nature  of  power  of  allowing  amendments  and  how  it 
should  be  exercised. 

The  power  to  amend  is  a  highly  valuable  one  and  should 
not  be  limited  beyond  what  is  necessary  to  keep  it  within 
safe  bounds.®  Where  the  record  itself  furnishes  the  data 
for  a  required  amendment,  great  liberality  should  be  al- 
lowed, because  the  danger  of  injustice  in  permitting 
amendments  is  then  very  slight,  but  where  an  amend- 
ment is  to  be  made  upon  an  extrinsic  showing,  all  prac- 
tical precautions  should  be  taken  that  no  one  be  wronged 
by  the  action  of  the  court ;  and,  as  most  facts  are  suscep- 
tible of  contradiction,  there  ought  always,  when  prac- 
ticable, to  be  notice  to  the  party  adversely  interested,  in 
order  that  he  may  have  the  opportunity  to  make  a  coun- 
ter-showing; and  the  more  ancient  are  the  proceedings 
the  greater  is  the  importance  of  giving  this  notice,  be- 
cause the  danger  of  a  false  showing  increases  as  the  dis- 
tance in  time  from  the  facts  increases." 

7  Browne  v.  Moore,  32  Mich.  254;  Mich.    80;    Rawlings   v.   Fisher,   110 

Polhemus  v.  Ann  Arbor  Sav.  Bank,  Mich.  19. 

27  Mich.  44;   People  v.  Wayne  Cir-  8  Gamsley  v.  Boyee,  158  Mich  9; 

cult  Judge,  41   Mich.   727;    Detroit,  Beecher  v.  Wayne  Circuit  Judge,  70 

etc.,  R.  Oo.  V.  Forbes,  30  Mich.  165;  Mich.  363;  Painter  v.  Lebanon  Land 

Hoyt  V.  Wayne  Circuit  Judge,  117  Co.,  164  Mich.  260. 

Mich.     172;     Hohn     v.     Interstate  9  Montgomery  v.  Merrill,  36  Mich. 

Casualty  Co.,  115  Mich.  79;  St.  Cnair  97;      Beecher      v.      Wayne      Circuit 

Tunnel  Co.  v.  St.  Clair  Circuit  Judge,  Judge,  70  Mich.  363;  Snyder  v.  Win- 

114    Mich.    417;     Shank    v.    Wood-  sor,  44  Mich.  140. 

worth,  111  Mich.  642;  Flint,  etc.,  R.  10  Montgomery  v.  Merrill,  36  Mich. 

Co.    V.    Wayne    Circuit    Judge,    108  97. 


§  G     Amendments  and  Defects  Cueed  by  Verdict      39 

§  5.  Amendments  after  judgment. 

After  judgment  has  been  rendered  in  a  cause,  any  de- 
fect or  imperfection  in  matter  of  form  in  the  record, 
pleadings,  process,  entries,  returns  or  other  proceedings 
may  be  rectified  and  amended  by  the  court,  in  affirmance 
of  the  judgment,  so  that  the  judgment  will  not  be  re- 
versed or  annulled;  and  any  variation  in  the  record  from 
any  process,  pleading  or  proceeding  had  in  the  cause  may 
be  reformed  and  amended  according  to  the  original  proc- 
ess, pleading  or  proceeding. ^^ 

In  regard  to  this  statute  it  has  been  said:  "Under  this 
section,  if  there  was  a  variation  in  the  declaration 
from  the  summons  in  the  name  of  the  party  defendant  in 
the  declaration,  it  could  have  been  amended  by  the  court. 
It  was  not  a  jurisdictional  defect;  and  where  it  is  not,  the 
amendment  will  be  treated  as  made  after  judgment  has 
been  rendered  in  the  cause."  ^^ 

Under  this  statute,  where  a  verdict  was  incorrectly  en- 
tered as  a  verdict  in  assumpsit  instead  of  one  in  tort,  the 
entry  may  be  amended  by  direction  of  the  court  to  con- 
form to  the  fact.^^ 

§  6.  Process,  pleadings  and  records  to  be  amended  only  by 
order  of  court. 

No  process,  pleading  or  record  can  lawfully  be  amended 
or  impaired  by  the  clerk  or  other  officer  of  a  court  or  any 
other  person  without  the  order  of  such  court  or  of  some 
other  court  of  competent  jurisdiction.^* 

11  Jud.    Act,    ell.    16,    §3;    Comp.  Us  Bole  v.  Sands  &  Maxwell  Lum- 

Laws    1915,     §  12480 ;     Williams    v.  bcr  Co.,  77  Mich.  239,  241. 

City    of    Lansing,    152    Mich.    169;  13  Forsythe  v.  Washtenaw  Circuit 

Miller   v.   Tanners'   Supply  Co.,  150  Judge,  180  Mich.  633,  635, 

Mich.  292;    Sehindler  v.  Milwaukee,  14  Jud.    Act,    ch.    16,    §7;    Comp. 

etc.,  R.  Co.,  77  Mich.  136,  154.  Laws  1915,  §  12484. 

Applied  in  Fernette  v.  Pere  Mar- 
quette R.  Co.,  175  Mieh.  653,  675.     , 


40      Amendments  and  Defects  Cured  by  Verdict     ^  7 

§  7.  Amendment  of  returns. 

All  returns  made  by  a  sheriff  or  other  officer  or  by  any 
court  or  subordinate  tribunal  to  any  court  may  be 
amended  in  matter  of  form  by  the  court  to  which  the  re- 
turn is  made,  in  their  discretion,  as  well  before  as  after 
judgment; "  but,  when  an  amendment  to  an  officer's  re- 
turn is  sought  in  respect  of  matters  aif  ecting  the  jurisdic- 
tion of  the  court,  it  should  be  allowed  only  upon  proper 
showing  and  upon  due  notice  to  the  parties  adversely  in- 
terested.^^ A  further  return  cannot  be  made  without  the 
leave  of  the  court  properly  granted ;  ^"^  but  a  return  does 
not  become  a  part  of  the  record  until  it  is  actually  on  file 
with  the  clerk,  and  the  officer  may,  therefore,  amend  it 
without  leave  at  any  time  before  filing.^^ 

§  8.  Amendment  of  bonds. 

Whenever  a  bond  is  required  by  law  to  be  given  by  any 
person,  in  order  to  entitle  him  to  any  right  or  privilege 
conferred  by  law,  or  to  commence  any  proceeding,  and  it 
is  defective  in  any  respect,  the  court,  officer  or  body 
authorized  to  receive  the  bond  or  to  entertain  any  pro- 
ceedings in  consequence  thereof,  may,  on  the  application 
of  all  the  obligors  therein,  amend  it  or  allow  a  new  one  to 
be  substituted." 

ISJud.    Act,    C'h.    16,    §4;    Comp.  443;    Hoben    v.    Citizens'    Tel.    Co., 

Laws  1915,  §12481;   Lyon  v.  Bald-  176   Mich.    596;    McCain   v.   Wayne 

win,  194  Mich.  118,  121.  Circuit  Judge,  187  Mich.   73. 

16  People      V.       Calhoun      Circuit  Want  of  jurisdiction,  after  rendi- 

Judges,    1    Doug.    417;     Haynes    v.  tion   of   judgment,  cannot   be   cured 

Knowles,    36    Mich.    407;    Green    v.  by   amendment   of  the  return.     Me- 

Kindy,    43    Mich.    279;    Denison    v.  Cain   v.   Wayne   Circuit   Judge,    187 

Smith,  33  Mich.  155;  Arnold  V.  Nye,  Mich,    73;    Hoben    v.    Citizens'    Tel. 

23  Mich.   286;    Wilcox  v.   Sweet,  24  Co.,  176  Mich.  596. 

Mich,    355;    Calendar    v.    Olcott,    1  17  Myers  v.  Prosser,  40  Mich.  644. 

Mich.  344 ;   King  v.  Bates,  80  Mich.  18  Watson  v.  Toms,  42  Mich.  561. 

367;  Cochrane  v.  Johnson,  95  Mich.  19  Jud.   Act,   ch.   16,   §11;    Comp. 

67;  Montgomery  v.  Merrill,  36  Mich.  Laws  1915,   §  12488. 
97;   Watson  v.  Dingman,  120  Mich. 


§  11  Amendments  and  Defects  Cured  by  Verdict      41 

§  9.  Disregarding:  errors  or  defects. 

The  Judicature  Act  provides  that  ''the  court  at  every 
stage  of  the  action  shall  disregard  every  error  or  defect 
in  the  proceedings,  which  do  not  affect  the  substantial 
rights  of  the  parties. ' '  ^o  This  provision,  first  introduced 
by  the  Judicature  Act,  is  taken  from  the  federal  equity 
rules.^* 

§  10.  Defects  cured  by  verdict At  common  law. 

When  there  is  any  defect,  imperfection  or  omission  in 
any  pleading,  whether  in  substance  or  form,  which  would 
have  been  a  fatal  objection  on  demurrer,  yet  if  the  issue 
joined  be  such  as  necessarily  required  proof  of  the  facts 
so  defectively  or  imperfectly  stated  or  omitted,  and  with- 
out which  it  is  not  to  be  presumed  that  either  the  judge 
would  have  directed  the  juiy  to  give,  or  the  jury  would 
have  given,  the  verdict,  such  defect,  imperfection  or  omis- 
sion is  cured  by  the  verdict  at  the  common  law.^^  If  a 
declaration  or  plea  omits  to  state  some  particular  circum- 
stance without  proof  of  which  it  is  impossible  to  support 
the  action  or  defense,  this  omission  will,  at  the  common 
law,  be  aided  by  the  verdict.^^ 

§  11.  By  statute. 

The  statute  in  this  state  ^*  provides  that,  when  a  verdict 
has  been  rendered  in  any  cause,  the  judgment  thereon 

20Jud.    Act,    I'h.    16,    §1;    Comp.  oolni,  2  Johns.    (N.   Y.)    569;   Miles 

Laws  1915,  §  12478.  v.    Oldfield,    4    Yeatcs     (Pa.)     423; 

21  Fed.  Equity  Rules,   S  19.  Matliis  v.  Sellers,  86  Pa.  St.  486. 

22  2  Saund.  Rep.  228;  note  (1);  23  Weston  v.  Mason,  :5  Burrows 
Gould,  PI.  ch.  10,  8  13;  Hall  v.  Mar-  1725;  Worcester  v.  Canal  Bridge,  16 
shall,  Cro.  Car.  497;  Avery  v.  Hoole.  Pick.  (Mass.)  541;  Elliot  v.  Heath, 
1  Cowp.  826 ;  Clark  v.  King,  3  Term  6  N.  H.  428 ;  Richardson  v.  East- 
R.  147;  Bishop  v.  Hay  ward,  4  Term  man,  12  Mass.  505;  Weighley  v. 
R.  472;  Fuller  V.  Town  of  Hampton,  Weir,  7  Serg.  &  R.  (Pa.)  309; 
5  Conn.  416;  Warren  v.  Harris,  7  Happe  v.  Stout,  2  Cal.  460 ;  Hickman 
111.  307;  Peck  v.  Martin,  17  Ind.  v.  Southerland,  4  Bibb  (Ky.)  194. 
115;  Warren  V.  Inhabitants  of  Litfth-  24Jud.  Act,  ch.  16,  §5;  Comp. 
field,   7  Me.  63;    Ingersoll   v.   Jack  Laws  1915,  S  12482. 

son,   9  Mass.  495;    Bayard   v.   Mai 


42      Amendments  and  Defects  Cured  by  Veedict   §  11 

shall  not  be  stayed,  nor  shall  any  judgment  upon  confes- 
sion or  default  be  reversed,  impaired  or  in  any  way  af- 
fected, by  reason  of  the  following  imperfections,  omis- 
sions, defects,  matters  or  things,  or  any  of  them,  in  the 
pleadings,  process,  record  or  proceedings,  namely: 

1.  For  any  default  or  defect  in  process  or  for  miscon- 
ceiving any  process  or  awarding  it  to  a  wrong  officer,  or 
for  want  of  any  suggestion  for  awarding  process  or  for 
any  insufficient  suggestion,^^ 

2.  For  any  imperfect  or  insufficient  return  of  any  sheriff 
or  other  officer,  or  that  the  name  of  such  officer  is  not  set 
to  a  return  actually  made  by  him.^^ 

3.  For  any  variance  between  the  original  writ,  bill, 
plaint  and  declaration,  or  between  either  of  them.^''' 

4.  For  any  mispleading,  miscontinuance  or  discontinu- 
ance, insufficient  pleading  or  misjoining  of  issue.^^ 

5.  For  the  want  of  any  warrant  of  attorney  by  either 
party,  except  in  cases  of  judgment  by  confession,  when 
such  warrant  is  expressly  required  by  law.^* 

6.  For  any  party  under  twenty-one  years  of  age  hav- 
ing appeared  by  attorney,  if  the  verdict  or  judgment  be 
for  him. 

7.  For  the  want  of  any  allegation  or  averment  on  ac- 
count of  which  a  motion  to  dismiss  could  have  been  main- 
tained.^" 

8.  For  omitting  any  allegation  or  averment  of  any  mat- 

26  See  Bogue  v.  Prentis,  47  Mieh.  to    acquire    jurisdiction.      Hoben    v. 

124,  where  two  summons  were  issued  Citizens'  Tel.  Co.,  176  Mich.  596. 

simultaneously  by  different  officers.  27  See    People    v.    Wayne    Circuit 

26  See  Denison  v.  Smith,  33  Mich.  Court  Judge,  27  Mich.  87. 

155,  holding  it  applies  only  to  formal  28  Elliott  v.  Farwell,  44  Mich.  186, 

defects    or    those    not    prejudicing  failure  of  declaration  to  allege  resi- 

either    party;    Wilcox   v.    Sweet,   24  dence  of  plaintiff;  Schafer  v.  Boyce, 

Mich.    355;    Calendar    v.    Olcott,    1  41  Mich.  256,  misjoinder  of  tort  and 

Mich.  344.  assumpsit. 

The  statute  does  not  cure  a  return  29Benalleck    v.    People,    31    Mich, 

which  fails  to  show  a  service  to  have '  200. 

been  made  in  the  manner  required  80  See  Pleading. 


§  11  Amendments  and  Defects  Cueed  by  Verdict      43 

ter,  without  proving  which  the  jury  ought  not  to  have 
given  the  verdict.^^ 

9.  For  any  mistake  in  the  name  of  any  party  or  person 
or  in  any  sum  of  money,  or  in  the  description  of  any  prop- 
erty, or  in  reciting  or  stating  any  day,  month  or  year, 
when  the  correct  name,  time,  sum  or  description  has  been 
once  rightly  alleged  in  any  of  the  pleadings  or  proceed- 
ings.^^ 

10.  For  a  mistake  in  the  name  of  any  juror  or  officer. 

11.  For  the  want  of  a  right  venue,  if  the  cause  was 
tried  by  a  juiy  of  the  proper  county.^' 

12.  For  any  informality  in  entering  a  judgment  or  mak- 
ing up  the  record  thereof,  or  in  any  continuance  or  other 
entry  upon  the  record.^* 

13.  For  any  default  or  negligence  of  any  clerk  or  officer 
of  the  court,  or  of  the  parties  or  their  counselors  or  at- 
torneys, by  which  neither  party  has  been  prejudiced."* 

And  it  is  further  provided  that  the  omissions,  imper- 
fections, variances,  and  defects  therein  before  enumer- 
ated, and  all  others  of  the  like  nature,  not  being  against 
the  right  and  justice  of  the  matter  of  the  suit,  and  not 
altering  the  issue  between  the  parties  or  the  trial,  shall  be 
supplied  and  amended  by  the  court  where  the  judgment 

31  See  Barton  v.  Gray,  57  Mich.  sian  Nat.  Ins.  Co.  v.  Eisenhardt,  153 
632.  Mich.  198. 

32  Smith  v.  Pinney,  86  Mich.  484;  35  Babcock  v.    Cook,    55   Mich.   1, 
Bole   V.    Sands   &   Maxwell   Lumber  7;   Bogue  v.  Prentis,  47  Mich.  124 
Co.,  77  Mich.  239,  mistake  in  name ;  Wilcox  v.  Sweet,  24  Mieh.  355.  Fail 
Morse  v.  Hewett,  28  Mich.  481,  491.  "^^  *«   formally  amend  declaration, 

33  Grand  Rapids  &  I.  R.  Co.  v.  ^^^^^  ^-  Whitwell,  6  Mich.  474 
„  i,  .  ,  nn  -tr-  1.  aa  a  Omission  to  enter  order  of  discon 
Southwick,  30  Mich.  444.  ^o   >r-  i. 

^  ,,.  ,     ,„,        tinuance.     Cook  v.  Perry,  43  Mich. 

34  Morse  V.  Hewett,  28  Mich.  481,       ^oo       ^    •     •        x  i.  ^ 

623.      Omission    to    enter    an    order 
491;  Kenyon  V.Woodward,  16  Mieh.      ^^thorizing    referee    to    act,    where 

ooc 

^  '^'  reference   was   by   stipulation.     Be- 

Use  of  word  "order"  instead  of  ^g^   ^    Fletcher,   39   Mich.   25,   29. 

"adjudged,"    in    overruling    a    de-  Clerical   mistake    in    rule    to    plead. 

murrer,  was  held  not  fatal,  on  writ  Elliott    v.    Preston,    44    Mieh,    189; 

of  error,  under  this  section,  in  Pruq-  Howe  v.  Maltz,  35  Mich.  500. 


44       Amendments  and  Defects  Curkd  bv  Vhrdict   ^  11 

shall  be  given,  or  by  the  court  into  which  sucli  judgment 
shall  be  removed  by  writ  of  error.  In  other  words,  a  for- 
mal amendment  which  might  have  been  made  before 
judgment  on  motion  will  be  regarded  by  the  supreme 
court  as  having  been  made  after  judgment. ^^  When  the 
error  or  omission  is  merely  a  clerical  or  technical  one,  the 
court  above,  on  error  brought,  will  disregard  it  without 
making  any  formal  amendment.  In  other  cases,  a  motion 
should  regularly  be  made  in  the  trial  court  for  leave  to 
amend,  and  the  court  will  stay  the  proceedings,  if  neces- 
sary, to  enable  the  party  to  make  such  motion.^' 

By  another  statute,  ''every  variance  between  process, 
pleadings,  or  any  instiniment  in  writing,  recited  or  re- 
ferred to  in  any  other  process,  pleading  or  record,  and 
every  mistake  in  the  name  of  any  officer  or  other  person, 
or  in  stating  any  day,  month  or  year,  or  in  the  descrip- 
tion of  any  property,  in  any  pleading  or  record,  shall  be 
disregarded  upon  the  trial  of  such  cause,  and  after  a  ver- 
dict therein,  unless  such  variance  or  mistake  be  calculated 
to  surprise  or  mislead  the  adverse  party,  and  to  prevent 
his  making  due  preparation  for  a  full  answer  on  the 
merits,  to  the  matter  concerning  which  such  variance  or 
mistake  shall  have  been  made. ' '  " 

§  12.  Application  to  amend. 

The  application  to  amend  should  be  made  promptly  on 
discovery  of  the  defect,  since  the  court  may  refuse  the 
amendment  where  laches  is  unexplained.'®  Generally, 
where  the  amendment  is  sought  on  an  extrinsic  showing, 
there  must  be  notice  to  the  adverse  party." 

86  Jud.    Act,    ch.    16,    §  6 ;    Comp.  37  Smith  v.  Pinney,  86  Mieh.  484. 

Laws  1915,  §1248.'{.  38  Jud.   Act,  ch.   18,   §11;    Comp. 

An    amendment,    under   this    stat-  Laws  1915,  §  12583. 

ute,  is  proper  to  cure  an  error,  not  89  Montgomery  v.  Merrill,  36  Mich, 

to  create  one ;  to  work  an  affirmance,  97. 

not  a  reversal.     Johnson  v.  Muske-  40  Montgomery  v.  Merrill,  36  Mich, 

gon  County,  195  Mich.  722.  97. 


§  2  Animals  45 

§  13.  As  affecting  third  persons. 

Ordinarily  amendments  will  not  be  allowed  to  atl'ect 
rights  acquired  by  third  persons  while  the  proceedings 
were  defective.*^ 

AMOUNT  IN  CONTROVERSY 

See  Courts;  Circuit  Courts;  Costs. 

ANIMALS 

§  1.  Kepleviii  for  beasts  distrained. 

§  2.  Affidavit. 

§  3.  Distinction    between   replevin   for   beasts   distrained    and   general 

replevin. 
§  4.  Service  of  writ  and  bond  for  delivery  of  beasts  to  plaintiff. 

Cr OSS-Reference:    Attachment   (sale  of  -where  attached). 

§  1.  Replevin  for  beasts  distrained. 

Any  person  whose  beasts  are  distrained  or  impounded 
in  order  to  recover  any  penalty  or  forfeiture  supposed  to 
have  been  incurred  by  their  going  at  large,  or  to  obtain 
satisfaction  for  any  damages  alleged  to  have  been  done 
])y  them,  may  have  a  writ  of  replevin  therefor  out  of  the 
proper  court,  and  the  same  proceedings  will  be  had  there- 
on as  in  other  cases  of  replevin,  except  as  will  be  presently 
explained.^ 

§2.  Affidavit. 

It  is  provided  that  the  writ  shall  not  be  executed  in  any 
case  unless  the  plaintiff  in  the  action  or  some  person 
knowing  the  facts  shall  make  and  annex  to  the  writ  an 
affidavit  stating  that  the  beasts,  describing  them,  have 
been  distrained  or  impounded  and  are  detained  by  the  de- 
fendant, and  that  the  plaintiff  is  the  owner  of  them  or  that 
he  has  a  lawful  right  to  the  possession  of  them.* 

41  Montgomery  v.  Merrill,  36  Rockey,  46  Mich.  460 ;  Fix  v.  Sis- 
Mich.  97.  sung,  83  Mich.  561. 

IJud.    Act,    ch.    27,  §38;    Comp.  2  Jud.    Act,   ch.    27,    §39;    Corap. 

Laws     1915,     §13117;  Norton     v.  Laws  1915,   §  13118. 


46  Animals  §  3 

§3.  Distinction  between  replevin  for  beasts  dis- 
trained and  general  replevin. 
This  proceeding  is  designed  especially  for  cases  of  dis- 
tress and  is  exclusive  of  the  proceedings  under  writs  of 
replevin  under  the  general  law.^  A  mere  claim  that  beasts 
had  been  distrained,  where  in  fact  they  had  not  been, 
would  not  defeat  the  plaintiff's  right  to  maintain  re- 
plevin under  the  general  statute;  but  where  the  defendant 
has  in  good  faith  taken  cattle  damage  feasant,  then,  if  the 
owner  desires  to  bring  replevin  to  test  the  legality  there- 
of, he  must  proceed  in  the  manner  designed  for  such 
cases.* 

§  4.  Service  of  writ  and  bond  for  delivery  of  beasts 

to  plaintiff. 
The  writ  is  served  and  the  property  appraised,  and,  be- 
fore delivery  thereof  to  the  plaintiff,  a  bond  must  be 
given  in  like  manner  and  with  the  same  effect  as  in  other 
cases  of  replevin.  But  the  property  must  not  be  removed 
by  the  officer  until  the  bond  is  given,  and  if  the  bond  be 
not  given  within  the  time  limited  for  that  purpose,  the 
property  must  be  relinquished  by  the  sheriff;  and  the 
failure  to  give  the  bond  will  be  deemed  a  discontinuance 
of  the  suit  by  the  plaintiff.^ 

3  Johnson  v.  Wing,  3  Mich.   163 ;  faith  in  making  the  distraint.     Ek- 

Hamlin  v.  Mack,  33  Mich.  103;  Bar-  lund  v.   Toner,   123  Mich.  302;    Cox 

rett  V.  Rowe,  78  Mich.  648 ;  Marx  v.  v.  Cliester,  77  Mich.  494. 

Woodruff,  50  Mich.  361;   Campau  v.  4  Campau  v.  Konan,  39  Mich.  362. 

Konan,    39    Mich.    362;    Norton    v.  6  Jud.    Act,    eh.    27,    §40;    Comp. 

Eockey,  46  Mich.  460.  Laws  1915,  §  13119.     See  Bublitz  v. 

Remedy  is  exclusive  and  precludes  Trombley,  113  Mich.  413,  holding 
an  action  of  trover  for  property  that  court,  on  its  own  motion,  can- 
taken  damage  feasant.  Spiegel  v.  not  discontinue  suit  because  the  bond 
Straw,  196  Mich.  576.  has  only  one  surety. 

But  replevin  in  the  general  form  Giving  indemnity  bond  instead  of 
is  the  proper  remedy  to  recover  cat-  replevin  bond  held  not  fatal  in  Don- 
tie  distrained  damage  feasant,  where  ley  v.  Fowler,  147  Mich.  288. 
defendant    has    not    acted    in    good 


Another  Action  Pending 


47 


ANOTHER  ACTION  PENDING 

Cross-Eeferences:    Stay  of  Proceedings;  Mandamus. 

The  pendency  of  another  action  may  bar  an  action. 
However,  the  two  actions  must  be  between  the  same  per- 
sons or  those  in  privity  with  them  and  based  on  the  same 
cause  of  action.^  A  pending  suit  in  chanceiy,  it  has  been 
held,  cannot  be  pleaded  as  a  defense  to  an  action  at  law,^ 
nor  can  a  pending  in  rem  proceeding  in  admiralty,'  or  a 
pending  suit  in  another  state,*  or  a  prior  suit  so  prema- 
turely brought  that  there  could  be  no  recoveiy  therein.*^ 

Formerly  this  defense  was  raised  by  plea  in  abatement 
and  it  was  held  that  such  a  plea  must  be  certain  and  show 
all  the  elements  necessary  for  the  defense,^  must  clearly 
allege  that  the  former  action  is  still  pending,''  that  the 
issues  in  the  two  actions  are  the  same,'  etc.     Where  a 


1  Eaton  V.  Eaton,  68  Mioh.  158; 
Lenox  v.  Fuller,  38  Mich.  268;  Bel- 
den  V.  Laing,  8  Mich.  500;  Jennison 
Hardware  Co.  v.  Godkin,  112  Mich. 
57;  Ernest  v.  Woodworth,  124  Mich. 
1.  See  Pinel  v.  Campsell,  190  Mich. 
347;  Michigan  By.  Commission  v. 
Detroit  &  M.  R.  Co.,  182  Mich.  234 ; 
Eeis  V.  Applebaum,  170  Mich.  506. 

2  Kinney  v.  Robison,  52  Mich. 
389;  Robinson  v.  Baxter,  57  Mich. 
127;  Wheeler  v.  Hathaway,  58  Mich. 
77.  See  also  DeMill  v.  Port  Huron 
Dry  Dock  Co.,  30  Mich.  38;  Joslin  v. 
Millspaugh,  27  Mich.  517. 

Pendency  of  foreclosure  proceed- 
ings cannot  be  pleaded  in  abatement 
to  a  suit  at  law  on  the  mortgage 
notes.  If  leave  to  sue  at  law  has  not 
been  granted  under  the  statute,  ap- 
plication should  be  made  in  the 
equity  cause  to  restrain  the  unau- 
thorized suit  at  law.  Joslin  v.  Mills- 
paugh, 27  Mich.  517;  Goodrich  v. 
White,  39  Mich.  489.    See  also  Steele 


V.  Kent  Circuit  Judge,  109  Mich. 
647. 

8  People  V.  Wayne  Circuit  Judge, 
28  Mich.  406. 

4  Wilcox  V.  Kassick,  2  Mich.  165. 
Compare,  however.  Citizens '  Bank  of 
Rudyard  v.  Chippewa  Circuit  Judge, 
186  Mich.  494,  garnisihrnent  proceed- 
ing. 

&  Blackwood  v.  Brown,  34  Mich.  4. 

6  Sufficiency  of  plea  of  another 
replevin  suit  pending,  see  Belden  v. 
Laing,  8  Mich.  500. 

7  Wales  v.  Jones,  1  Mich.  254; 
Pew  V.  Yoare.  12  Mich.  16,  holding 
it  insufficient  to  allege  former  suit 
was  pending  at  time  of  commence- 
ment of  second  action, 

8  Belden  v.  Laing,  8  Mich.  500. 
But    where    no    reasonable    doubt 

exists  as  to  the  identity  of  the  two 
suits,  the  plea  was  held  good. 
O'Brien  v.  Alpena  Circuit  Judge, 
106  Mich.  42. 


48  Another  Action  Pending 

motion  to  dismiss  is  made  on  the  ground  of  another  action 
pending,  the  motion,  as  a  substitute  for  the  abolished 
plea  in  abatement,  must  show  tluit  tlie  whole  relief  sought 
in  the  second  suit  is  obtainable  in  the  first.^ 

Form  of  Motion  to  Dismiss  for  Another  Suit  Pending 
(Title  of  court  and  cause.) 

Comes  now  the  said  defendant  and  moves  the  court  now  here  to  dis- 
miss this  suit  for  the  following  reason: 

1.  That   before   the   eommcneement   of   this   suit,   to   wit,   on    ,   in 

the  Circuit  Court  for  the  County  of ,  the  said  plaintiff  commenced 

another  suit  upon  the  identical  cause  of  action  in  the  declaration  of  the 
plaintiff  in  this  present  suit  set  forth,  the  parties  in  both  which  suits 
are  the  same  and  not  other  or  different  persons,  and  which  said  suit 
first  commenced  is  still  pending  in  the  court  last  aforesaid. 

This  motion  is  based  upon  the  files  and  records  in  this  cause  and  Upon 
the  affidavit  of  C.  D.  now  on  file  herein. 

ANSWER 

See  Ple/VDINg;   Mandamus. 

ANTICIPATING  DEFENSES. 

See  Pleading. 

APPEALS 

Appeals  from  probate  courts  (see  Probate  Courts)  and 
from  justices  of  the  peace  (see  Justices  of  the  Peace)  to 
the  circuit  court  are  regulated  by  statute.  Appeals  in 
equity  suits  to  the  supreme  court  are  not  within  the  scope 
of  this  work.  Writs  of  error  (see  Error,  Writ  of)  are 
considered  in  detail  elsewhere,  as  are  mandamus  proceed- 
ings (see  Mandamus)  in  connection  with  appeals.  Ap- 
peals to  the  circuit  in  certain  particular  actions  or  pro- 
ceedings, as  provided  for  by  statute,  are  referred  to  in 
the  articles  relating  to  such  actions  or  proceedings  (see 
Attachment  as  to  appeal  from  order  on  application  to 
dissolve,  Fraudulent  Debtors,  Supplementaiy  Proceed- 
ings, Summary  Proceedings,  etc.). 

9  Lewis  J.  Selznick  Enterprises  v. 
Harry  I.  Garson  Productions,  202 
Mich.   111. 


§  2  Appeakance  49 

APPEARANCE 

§  1.  Definition. 

§  2.  Kinds  and  effect. 

§  3.  Necessity  and  time  for. 

§  4.  Eight  to  appear  and  Tv'ho  may  appear. 

§  5.  AVliat  constitutes. 

§  6.  Form,  contents  and  entry. 

Cross-References:  Commencement  op  Actions;  Bait,  (appearance  by 
putting  in  special  bail);   Attachment;  Attorneys;  Defaults. 

§  1.  Definition. 

'' Appearance"  means  the  coming  into  court  as  a  party 
to  a  suit,  wliether  as  plaintiff  or  defendant.^  Ordinarily, 
however,  the  term  is  used  to  signify  the  act  of  defendant. 
As  applicable  to  defendant,  it  is  the  formal  proceeding 
by  which  ho  submits  himself  to  the  jurisdiction  of  the 
court.^  The  actual  |)resence  of  the  party  is  not  necessary 
to  constitute  an  appearance  but  he  may  appear  by  agent 
or  attorney.* 

§  2.  Kinds  and  effect. 

Appearances  are  either  general  or  special. 

An  appearance  is  general  if  it  is  an  absolute  submis- 
sion to  the  jurisdiction  of  the  court,  and  special  if  made 
for  the  sole  purpose  of  objecting  to  the  jurisdiction  of 
the  court  over  the  person  of  defendant.  Where  it  is  evi- 
dent that  a  special  appearance  is  intended,  the  court  can- 
not enlarge  it  and  make  it  general,*  and,  on  the  other 
hand,  where  the  appearance  is  in  effect  a  general  one 
the  partj^  cannot  limit  it  to  a  special  appearance,  as  by 
calling  it  a  special  one. 

When  employed  without  a  qualifying  adjective,  the 

1  Thompson  v.  Michigan  Mut.  Ben.  3  Wagner  v.  Kellogg,  92  Mich. 
Ass'n,    52    Mich.    522;     Wagner    v.       616. 

Kellogg,  92  Mich.  616.  4  Schwab  v.  Mabley,  47  Mich.  512. 

2  Crawford   v.   Vinton,    102    Mich. 

sn. 

1  Abbott— 4 


50  Appeabance  §  2 

term  ''appearance"  usually  signifies  a  general  appear- 
ance, which  is  a  submission  to  the  jurisdiction  of  the 
court  as  to  the  person  of  the  defendant  and,  in  effect, 
a  waiver  of  all  irregularities  and  defects  in  the  process 
and  in  tlie  manner  in  which  it  was  served,  or  even  of  the 
absence  of  all  process.^  But  the  waiver  incident  to  a 
general  appearance  does  not,  and  no  waiver  can,  confer 
upon  the  court  jurisdiction  as  to  the  subject-matter  which 
it  w^ould  not  othenvise  possess,  so  that  all  objections  to 
the  jurisdiction  of  the  court  as  to  the  subject-matter  are 
still  open,  notwithstanding  a  general  appearance  on  the 
part  of  the  defendant.^  A  special  appearance  is  one  made 
not  for  the  pui*pose  of  submitting  the  person  of  the  de- 
fendant to  the  jurisdiction  of  the  court,  but  for  the  pur- 
130se  of  presenting  some  objection  based  upon  the  irregu- 
larity of  the  proceedings,  and  usually  with  the  aim  of 
averting  the  exercise  of  such  jurisdiction.  If  the  objec- 
tion made  is  not  sustained  by  the  court,  the  special  ap- 

6  Gunn  Hardware  Ck).   v.  Denison,  bott,  50  Mich.  278;   Graham  v.  Cass 

83    Mich.   40;    Pardee   v.    Smith,   27  Circuit  Judge,  108  Mich.  425;  Grand 

Mich.  33;  Falkner  v.  Beers,  2  Doug.  Eapids,  etc.,  R.  Co.  v.  Gray,  38  Mich. 

117;  Stone  V.  Welling,  14  Mich.  514;  461;    Dunlap    v.    Byers,    110    Mich. 

Curran  V.  Norris,  58  Mich.  512 ;  Man-  109;     Sarmiento    v.    The    Catherine 

hard  V.  Schott,  37  Mich.  234;  Austin  C,    110    Mich.    120;     Thompson    v. 

V.  Burroughs,  62  Mich.  181;  Bursou  Michigan  Mut.  Ben.  Ass'n,  52  Mich. 

V.   Huntington,  21  Mich.  415;   Gree-  522;  Norbcrg  v.  Hcineman,  59  Mich, 

ley   V.   Stilson,   27  Mich.   153;    Max-  210;  Watkins  v.  Plummer,  93  Mich, 

well  V.  Deens,  46  Mioh.  35;   Dailey  217;    Griffin    v.    Wattles,   119    Mich. 

V.  Kennedy,  64  Mich.  208;  Bryant  v.  346;   Steel  v.  Clinton  Circuit  Judge, 

Hendee,    40    Mich.    543;    Taylor    v.  133    Mich.    695;    Home   Ins.    Co.    v. 

Adams,  58  Mich.  187;  Pierce  V.  Reh-  Curtis,    32    Mich.    402;    Cofrode    v. 

fuss,    35    Micli.    53;    Grand   Rapids,  Wayne  Circuit  Judge,  79  Mich.  332. 
etc.,  R.  Co.  V.   Gray,  38  Mich.  461;  A  petition  to  remove  a  cause  to  a 

Ferguson    v.    Oliver,   99   Mich.    161 ;  federal   court   is   not   a   general   ap- 

Stevens    v.    Harris,    99    Mich.    230 ;  pearance  as  to  defendants  not  served 

Tromble  v.  Hofifman,  130  Mich.  676;  with  process  who  unite  in  the  peti- 

Hicks  v.  Steel,  126  Mich.  408;  Dunlap  tion.     Schwab   v.   Mabley,   47   Mich. 

V.  Byers,  110   Mieh.   109;   Sherwood  512. 

V.   Ionia   Circuit    Judge,   107   Mich.  6  Kirkwood  v.  Hoxie,  95  Mieh.  62; 

136;   Attorney  General  v.  A.  Booth  Gott  v.  Brigham,  41  Mich.  227. 
&  Co.,  143  Mich.  89;  Durfee  v.  Ab- 


Appeakance 


51 


pearance  cannot  be  treated  as  a  general  appearance  in 
the  case.'  An  appearance  for  the  purpose  of  objecting 
to  irregularities  does  not  waive  them,  but,  if  it  is  for 
some  other  puipose,  and  contemplates  a  step  adapted  to 
a  case  regiilarly  on  foot,  as  for  obtaining  a  continuance, 
it  is  a  waiver,  and  no  objection  can  afterwards  be  taken 
to  prior  defects,  even  though  the  motion  for  which  the 
appearance  was  made  be  denied.^ 

Objections  to  the  venue  are  waived  by  a  general  ap- 
pearance.^ So  the  absence  of  process  is  waived  by  a 
general  aj^pearance,^"  as  are  defects  in  the  process,"  or 
in  the  service  ^^  or  return  ^^  thereof.  So  defects  in  the 
affidavit  for  arrest  are  waived  by  a  general  appearance," 
as  is  the  failure  to  obtain  leave  of  court  to  sue."  So 
pleading  over  after  the  overruling  of  the  objection  to  the 
affidavit  for  arrest  waives  the  defect  in  the  affidavit.^' 


i  Schwab  V.  Mabler,  47  Mich.  512 ; 
McLean  v.  Isbell,  44  Mich.  129;  Mc- 
Cain V.  Wayne  Circuit  Judge,  187 
Mich.  73;  Lyon  v.  Baldwin,  194 
Mich.  118;  Woodruff  v.  Young,  43 
Mich.  548. 

8  Lane  v.  Leech,  44  Mich.  163. 

9  Johnson  v.  Burke,  167  Mich.  349, 
355;  Thompson  v.  Michigan  Mut. 
Ben.  Ass'n,  52  Mich.  522;  Norberg 
V.  Heineman,  59  Mich.  210;  Hicks 
V.  Steel,  126  Mich.  408;  People  v. 
Detroit  Superior  Judge,  30  Mich.  10. 

10  Cofrode  v.  Wayne  Circuit 
Judge,  79  Mich.  332.  See  also  Dur- 
fee  V.  Abbott,  50  Mich.  278. 

UFalkner  v.  Beers,  2  Doug.  117; 
•Tromblc  v.  Hoffman,  130  Mich.  676; 
Pardee  v.  Smith,  27  Mich.  33 ;  Pierce 
V.  Echfuss,  35  Mich.  53  (writ  made 
returnable  on  Sunday)  ;  Maxwell  v. 
Deens,  46  Mich.  35;  Curran  v.  Nor- 
ris,  58  Mich.  512  (summons  instead 
of  order  to  show  cause). 

12  Priest  V.  American  Ins.  Union, 


171  Mich.  321;  Stone  v.  Welling,  14 
Mich.  514  (service  by  publication) 
Burson  v.  Huntington,  21  Mich.  415 
Oreeley    v.    Stilson,    27    Mieh.    153 
Manhard    v.    Sehott,    37    Mich.   234 
Austin  V.  Burroughs,  62  Mich.  181 
Dailey   v.    Kennedy,    64   Mich.   208 
Audretsch  v.  Hurst,  126  Mich.  301 
National     Coal     Co.     v.     Cincinnati, 
etc.,  Min.  Co.,  168  Mich.  195;  Longe 
V.  Kinoey,  171  Mich.  321. 

13  Burson  v.  Huntington,  21  Mich. 
415. 

14  Maxwell  v.  Deems,  46  Mich.  35 
Wasey   v.   Mahoney,   55   Mich.    194 
Wiest   V.   Luyendyk,   73   Mieh.   661 
Graham  v.  Cass  Circuit  Judge,  108 
Mich.  425.     But  see  In  re  Stephen- 
son, 32  Mich.  60. 

15  Attorney  General  v.  A.  Booth  & 
Co.,  143  Mieh.  89. 

16  See  Keed  v.  McCready,  170 
Mieh.  532;  Taylor  v.  Adams,  58 
Mich.  187.  Contra,  Warren  v.  Crane, 
50    Mich.    300. 


52  Appearance  §  2 

But  appearance  does  not  waive  an  illegal  arrest  on  a 
capias." 

A  defendant  who  has  appeared  by  notice  of  retainer 
or  appearance  is  entitled  to  notice  in  advance  of  all  future 
proceedings  in  the  cause,  although  he  may  not  have  fol- 
lowed his  appearance  by  plea.^* 

§  3.  Necessity  and  time  for. 

Where  the  declaration  is  not  filed  at  the  commence- 
ment of  the  suit  and  served  with  the  writ,  the  defendant 
must  serve  notice  of  his  appearance  or  of  retainer  and 
file  a  copy  thereof  with  the  clerk  of  the  court  within 
fifteen  days  after  the  service  of  the  writ  upon  him.^^ 
When  the  declaration  is  so  filed  and  served,  the  defendant 
must  plead  to  the  declaration  within  fifteen  days  after 
such  service ;  ^"  in  which  case,  the  filing  and  service  of 
the  plea  constitutes  an  appearance  by  the  defendant,  ren- 
dering unnecessary  the  filing  and  service  of  a  notice  of 
appearance  or  of  retainer.  The  business  address  of  the 
defendant's  attorney  should  appear  upon  the  notice.^^ 

When  tlie  suit  has  been  commenced  by  declaration,  the 
defendant  is  I'eciuired  to  plead  thereto  within  fifteen  days 
after  service  upon  him  of  a  copy  of  the  declaration  and 
notice  to  plead.^^  The  filing  and  service  of  the  plea  con- 
stitutes an  appearance  by  the  defendant  and  no  notice 
of  appearance  or  of  retainer  is  necessary. 

§  4.  Rig-ht  to  appear  and.  who  may  appear. 

Kvery  person  of  full  age  and  sound  mind  may  appear 
in  a  suit  by  attorney  in  every  action  or  plea  against  him 

17  Baldwin      v.      Branch      C?ircuit  E.  H.  Stafford  Mfg.  Co.,  171  Mich. 

Judge,  48  Mich.  525.  8. 

iSCir.  Ct.  Rule  13.  20  Jud.    Act,    ch.    13,    §6;    Comp. 

19Cir.  Ct.  Rule  31,  §2;  Jud.  Act,  Laws  1915,   §12409. 

ch.     13,     §6;     Comp.     Laws     1915,  21  Cir.  Ct.  Rule  3,  §  5. 

§12409.  22  Jud.    Act,    ch.    13,    §4;    Comp. 

If  fifteenth  day  falls  on  Sunday,  Laws  1915,  §  12407. 
may  appear  on  Monday.    Vohlers  v. 


§  5  Appeaeance  53 

in  any  conrt,  or  may,  at  his  election,  prosecute  or  defend 
such  action  or  plea  in  person,  except  that  he  cannot  ap- 
pear on  the  record  in  any  civil  case  in  person  while  he 
has  an  attorney  in  the  cause.*^'  But  if  suit  is  brought 
against  a  defendant  who  is  an  infant  or  is  insane  or 
otherwise  mentally  incompetent,  the  suit  must  be  de- 
fended by  the  guardian  of  the  estate  of  such  defendant, 
if  there  be  such  guardian.  If  there  be  no  such  guardian, 
then,  before  the  action  may  proceed  further,  it  is  neces- 
sary that  a  guardian  ad  litem  be  appointed  for  the  de- 
fendant.^* If  no  nomination  of  a  guardian  ad  litem  for 
an  infant  defendant  is  made  within  twenty  days  after 
the  service  of  the  process  or  declaration,  the  plaintiff 
may  obtain  an  order  from  the  court  in  which  the  proceed- 
ings are  pending  appointing  some  suitable  person  to  act 
as  guardian  ad  litem  for  such  defendant.^^  Such  guard- 
ian does  not  become  liable  for  the  costs  of  the  suit  un- 
less -specially  charged  by  the  order  of  the  court  for  some 
personal  misconduct  in  the  cause.^^ 

Any  defendant  against  whom  process  has  issued  has 
the  right  to  appear  without  service.^' 

§  5.  What  constitutes. 

The  defendant  is  deemed  to  have  appeared  in  the 
action,  when  he  pleads,  gives  the  plaintiff  written  notice 
of  his  appearance,  or  when  his  attorney  gives  the  plain- 
tiff notice  of  appearance  or  retainer  generally.  Service 
of  notice  of  retainer  constitutes  an  appearance,^'  as  does 
the  filing  of  a  motion  to  dismiss  as  a  substitute  for  a 
demurrer,^'  or  a  plea,^**  or  the  giving  of  a  bond  to  obtain 

23  Jud.  Act,  ch.  4,  §14;  Comp.  by  guardian  ad  litem,  see  Cir.  Ot. 
Laws  1915,  §  12261.  Rule  63. 

24  Jud.  Aet,  ch.  12,  §  30  ;  Comp.  27  Ralston  v.  Chapin,  49  Mich.  274. 
Laws  1915,  §  12381.  28  Low      v.      Kalamazoo      Circuit 

26  Jud.   Act,   ch.    12,    8  30;    Comp.  Judge,  61   Mich.  35. 

Laws  1915,   §  12381.  29  Thompson     v.     Michigan     Mut. 

26  Jud.   Act,   ch.    12,    §30;    Comp.  Ben.   Ass'n,   52   Mich.   522. 

Laws  1915,  §  12381.    As  to  security  80  Miller  v.  Rosier,  31  Mich.  475, 


54  Appearance  §  5 

the  dissolution  of  an  attachment,^^  but  it  is  otherwise  as 
to  a  motion  to  quash  service  and  strike  out  the  sugges- 
tion of  damages  filed  by  plaintiff  in  ejectment,  where  it 
is  clear  that  such  was  not  the  intent  of  defendant's 
counsel.^^ 

§  6.  Form,  contents  and  entry. 

Notice  of  appearance  is  addressed  by  defendant,  or 
his  attorney  if  he  have  one,  to  plaintiff's  attorney,  stat- 
ing that  defendant  appears,  and  the  business  address  of 
defendant's  attorney  must  be  added. ^' 

The  omission  of  the  clerk  to  enter  defendant's  appear- 
ance in  a  cause  is  a  mere  matter  of  form  which  is  amend- 
able nunc  pro  tunc.'* 

rorm  of  Notice  of  Eetainer 

(Title  of  court  and  cause.) 
Sir:— 

Please  to  take  notice  that  I  am  retained  for  the  defendant  in  the  above- 
entitled  cause. 
Dated,  etc. 

Yours,  etc., 

K.  L., 
Defendant's  Attorney. 
Business  address: 
To  J.  K.,  Plaintiff 's  Attorney.  ,  Mich. 

APPRAISAL 

See  Attachment;  Replevin;  Exemptions. 

ARBITRATION  AND  AWARD 

§    1.  Common  law  submission. 
§    2.  Statutory  submission. 
§    3.  What  may  be  submitted. 

31  Butcher  v.  Cappon  &  Bertsch  in  an  action  against  the  receiver,  is 
Leather  Co.,  148  Mich.  552.  not  an  appearance  by  the  corpora- 

32  Thomson  v.  McMorran  Mill  Co.,  tion.  Price  v.  Delano,  187  Mich.  49. 
132  Mich.  591.  84Norvell    v.    McHenry,    1    Mich. 

83  An    appearance   by    a   receiver,      227,  234.  . 


§  1  Abbitration  and  Awaed  55 

§    4.  Acknowledgment  and  seal. 

§    5.  Hearing. 

§    6.  Swearing  arbitrators   and  witnesses. 

§    7.  Compelling  attendance  of  witnesses. 

§    8.  Award. 

§    9.  Confirmation. 

§  10.  Motion  to  vacate. 

§11.  Motion  to  modify. 

§  12.  Time  for  and  disposition  of  motion  to  vacate  or  modify. 

§  13.  Entering  judgment   on. 

§  14.  Costs. 

§  15.  Judgment  record. 

§  16.  Effect  of  judgment;   execution. 

§  17.  Enforcing  judgment  by  rule  and  attachment. 

§  18.  Writ  of  error. 

§  19.  Statutory  submission  irrevocable. 

§  20.  Equity  jurisdiction. 

§  21.  Effect   on  pending  suit. 

Cross-Eeference:  Joinder  of  Causes  of  Action  (joinder  of  count  on 
an  award). 

§  1.  Common  law  submission. 

At  common  law,  the  parties  to  a  controversy  who 
possess  the  capacity  to  bind  themselves  by  contracts  in 
general  may  agree  to  submit  their  dispute  to  the  arbi- 
tration of  one  or  more  persons  and  to  abide  by  the  award 
of  the  arbitrators  upon  the  subject-matter.  If  the  award 
was  not  performed,  it  was  enforceable  by  action  only. 
This  peaceful  mode  of  adjusting  differences  between 
parties,  though  sometimes  anciently  discouraged  by  the 
courts  as  carrying  causes  away  from  their  jurisdiction,^ 
has  generally  been  favored  by  the  courts,^  whose  policy 
it  is  to  avoid  unnecessary  litigation,  and  has  been  ad- 
miringly regarded  by  the  legislature,  which,  adopting 
the  common  law  institution  as  a  nucleus,  has  engrafted 
upon  it  several  incidents  and  safeguards  intended  to  en- 
hance its  efficiency  and  usefulness. 

1  Simmonds  v.  Swaine,  1  Taunt.  28  Mich.  186 ;  Alpena  Lumber  Co. 
549.  V.  Fletcher,  48  Mich.  555;  Brush  v. 

2  Chicago,  etc.,  R.  Co.  v.  Hughes,      Fisher,  70  Mich.  469. 


56  Arbitration  and  Award  §  1 

The  statutoiy  provisions  do  not  supplant  the  common 
law  arbitration,  which  may  still  be  resorted  to  if  the  par- 
ties prefer  it,  but  provide  a  method  so  greatly  improved 
that  in  most  cases  it  is  adopted  in  preference  to  the  other. 
An  arbitration  which  does  not  conform  to  the  statutor\^ 
requirements  may  nevertheless  be  good  at  common  law, 
and  a  common  law  action  will  lie  to  enforce  it  if  it  fairly 
disposes  of  the  matters  in  dispute  and  leaves  nothing 
open  to  controversy.^ 

§  2.  Statutory  submission. 

All  persons,  except  infants  and  persons  of  unsound 
mind,  may,  by  an  instrument  in  writing,  submit  to  the 
decision  of  one  or  more  arbitrators  any  controversy  ex- 
isting between  them  which  might  be  the  subject  of  an 
action  at  law^  or  of  a  suit  in  chancery,  except  as  will  be 
presently  stated,  and  may  in  such  submission  agree  that 
a  judgment  of  any  circuit  or  superior  court,  to  be  desig- 
nated in  the  instrument,  shall  be  rendered  upon  the 
award  made  pursuant  to  such  submission.*  An  agree- 
ment, however,  which  contains  no  covenant  or  agreement 
not  to  sue  or  that  the  aw^ard  shall  be  made  the  founda- 
tion of  a  judgment  provides  merely  for  a  common  law 
arbitration.* 

An  individual  partner  has  no  power,  without  special 
authority  for  the  purpose  from  his  co-partners,  to  sub- 
mit partnership  matters  to  arbitration;®  but  an  agent 
appointed  for  the  purpose  may  bind  his  principal  by  a 
submission  to  arbitration  of  the  matters  of  his  principal, 

3  Galloway  v.  Gibson,  51  Mich.  A  parol  submission  was  good  at 
135;  Cady  v.  Walker,  62  Mich.  157;  common  law.  Cady  v.  Walker,  62 
Clement  v.  Comstoek,  2  Mich.  359;       Mich.  157. 

Sawyer   v.    McAdie,    70    Mich.    386 ;  6  McGunn  v.  Hanlin,  29  Mich.  476. 

Gibson  v.  Burrows,  41  Mich.  713.  6  Bachus    v.    Coyne,    35    Mich.    5; 

4  Jud.    Act,    ch.    45,    §  1 ;    Comp.  Buchoz  v.  Grandjean,  1  Mich.  367 ; 
Laws     1915,     §13646;      Taylor     v.  Davis  v.  Berger,  54  Mich.  652. 
Smith,  93  Mich.  160;  Hoste  v.  Dal- 

ton,   137   Mich.   522. 


$  3  Arbitratiok  and  Award  57 

and  this  whether  the  agent  sign  the  agreement  in  his  own 
name  or  in  that  of  his  principal.''^ 

Corporations  as  well  as  natural  persons  may  submit 
their  controversies  to  arbitration.  The  president  and 
secretary  of  a  corporation  are  proper  officers  to  agree 
for  it  upon  an  arbitration.' 

Form  of  Statutory  Submission  to  Arbitration 

Know  all  men  by  these  presents,  that  A.  B.,  of ,  of  the  first  part, 

and  C.  D.,  of   ,  of  the  second  part,  being  parties  to  a  controversy 

existing  between  tJiein  in  relation  to  (here  state  the  subject-matter  of  th« 
controversy)  which  said  controversy  might  be  the  subject  of  an  action 
at  law  or  of  a  suit  in  chancery,  but  does  not  involve  the  claim  of  any 
person  to  any  estate  in  fee  or  for  life  in  real  estate,  do  hereby  submit 
the  said  controversy  to  E.  F.,  6.  H.,  and  I.  J.  (name  one  or  more  per- 
sons)   as  arbitrators,  and  do  agtree  that  a  judgment  of  the  circuit  court 

for  the  county  of may  be  rendered  upon  the  award  made  pursuant 

to  the  siubmission  hereby  made,  according  to  the  statute  in  such  case  made 
and  provided. 

In   witness   whereof,   the   above-named   parties  have   hereunto    set  their 

handstand  seals  this day  of ,  A.  D 

A.  B.  [Seal.] 

(Add  acknowledgment.)  C.  D.  [Seal.] 

§  3.  What  may  be  submitted. 

No  statutory  submission  to  arbitration  is  permitted 
to  be  made  respecting  the  claim  of  any  person  to  any 
estate  in  fee  or  for  life  in  real  estate,  but  any  claim  to 
an  interest  for  a  term  of  years  or  for  one  year  or  less  in 
real  estate  and  controversies  respecting  the  partition  of 
lands  between  joint  tenants  or  tenants  in  common  or 
concerning  the  boundaries  of  lands  or  concerning  the 
admeasurement  of  dower  may  be  submitted  to  arbitra- 
tion.® 

Damages  for  a  right  of  flow^age  are  a  proper  subject 
of  statutory  arbitration,  and  the  award  is  binding  if  it 

7  City  of  Detroit  v.  Jackson,  1  » Jud.  Act,  eh.  45,  §2;  Comp. 
Doug.  106.  Laws    1915,    §  13647 ;    Lang   v.    Sal- 

8  Fitch   V.    Oonstantine   Hydraulic  liotte,  79  Mich.  505. 
Co.,  44  Mieh.  74. 


58  Arbitration  and  Award  §  3 

agrees  with  the  express  terms  of  the  submission ;  ^°  but, 
where  hmd  matters  are  so  inter^voven  with  the  matters 
submitted  upon  the  theory  of  one  party  that  no  settle- 
ment would  be  perfect  without  passing  upon  the  ques- 
tion of  ownership,  the  case  is  an  improper  one  for  statu- 
tory arbitration.^* 

A  matter  which  forms  the  subject  of  a  pending  suit 
may  be  submitted  to  arbitration,  and  the  court  may  enter 
judgment  upon  the  award,  rejecting  the  record  anterior 
to  the  submission.*^  The  effect  of  such  submission  is  to 
discontinue  the  suit,*^  if  the  submission  is  followed  by 
an  award.**  A  claim  under  a  contract  which  is  illegal 
because  against  public  policy  or  forbidden  by  statute  can- 
not be  made  the  subject  of  arbitration." 

§  4.  Acknowledgment  and  seal. 

Every  submission  under  the  statute  must  be  acknowl- 
edged by  the  parties  signing  it  before  some  officer  author- 
ized to  take  acknowledgments  of  deeds,  who  must  cer- 
tify the  acknowledgment  thereon.*^  If  the  submission 
be  not  acknowledged,  it  will  not  support  a  judgment,  al- 
though the  award  thereon  might  be  enforced  by  an 
action.*'  If,  however,  it  be  acknowledged  before  the 
award  is  made,  it  will  support  a  judgment  on  the  award.*' 
The  submission  need  not  be  under  seal.*' 

§  5.  Hearing. 

It  is  the  duty  of  the  arbitrators  selected  by  the  parties 
to  appoint  a  time  and  place  for  the  hearing,  and  they 

10  Fiteh  V.   Constantine  Hydraulic  1*  Callanan    v.    Port    Huron,    etc., 

Co.,  44  Mich.  74.  R.  Co.,  61  Mich.  15. 

"GaUagher    v.    Kern,    31    Mich.  16  Hall  v.  Kimmer,  61  Mich.  269. 

138.  16  Jud.    Aft,    ch.    45,    §  3 ;    Comp. 

12  Vanderhoof    v.    Dean,    1    Mich.  Laws  1915,  §  13648. 

463.  17  Gibson  v.  Burrows,  41  Mich.  713. 

13  Vanderhoof    v.    Dean,    1    Mich.  18  Davis  v.  Berger,  54  Mich.  652. 
463;    Dunn   v.   Sutliff,   1   Mich.   24;  19  City   of   Detroit   v.    Jackson,    1 
McNulty  V.  Solley,  95  N.  Y.  242.  Doug.  106. 


§  7  Arbitration  and  Award  59 

may  adjourn  the  hearing  from  time  to  time  as  may  be 
necessary  and,  on  the  application  of  either  party  and  for 
good  cause,  may  postpone  it  to  any  time  not  extending 
beyond  the  day  fixed  in  the  submission  for  rendering 
their  award.^°  All  the  arbitrators  must  meet  together 
and  hear  the  proofs  and  allegations  of  the  parties.^^  If 
either  party  neglects  to  appear  before  the  arbitrators 
after  due  notice,  they  may  proceed  to  hear  and  determine 
the  matter  submitted  to  them  upon  the  evidence  pro- 
duced by  the  other  party.*^^  They  are  the  judges  of  the 
law  as  well  as  of  the  facts.^^ 

§  6.  Swearing"  arbitrators  and  witnesses. 

Before  proceeding  to  hear  any  testimony,  the  arbitra- 
tors should  be  sworn  faithfully  and  fairly  to  hear  and 
examine  the  matters  in  controversy  submitted  to  them 
and  to  make  a  just  award  thereon  according  to  the  best 
of  their  understanding.^*  The  oath  of  arbitrators  need 
not  be  in  writing.^*  Either  of  the  arbitrators  will  have 
power  to  administer  all  necessary  oaths  to  witnesses  ex- 
amined before  them.^^ 

§  7.  Compelling-  attendance  of  witnesses. 

Witnesses  may  be  compelled  to  appear  before  arbitra- 
tors by  subpoena,  to  be  issued  by  any  justice  of  the  peace 
in  the  same  manner  and  with  the  like  effect  and  subject 
to  the  same  penalties  for  disobedience  or  for  refusing  to 
be  sworn  or  to  testify  as  in  cases  of  trials  before  justices 
of  the  peace.^' 

20Jud.    Act,    Ph.    45,    §4;    Comp.  24  Jud.    Act,    ch.    45,    §5;    Comp. 

Laws  1915,  §13649;  Elliott  v.  Han-  Laws   1915,   §13650. 

son,  39  Mich.  157;  Abeel  v.  Hubbell,  25  Davis  v.  Berger,  54  Mich.  652. 

52  Mich.  37.  26  Jud.    Act,    ch.    45,    §5;    Comp. 

21Jud.    Act,    eh.    45,    §7;    Comp.  Laws  1915,  §13650. 

Laws  1915,  §  13652.  27  Jud.    Act,    ch.    45,    §6;    Comp. 

22  Jud.    Act,   ch.   45,    §23;    Comp.  Laws  1915,  §13651. 
Laws  1915,   §  13668. 

23  Hewitt  V.  Village  of  Reed  City, 
124  Mich.  6. 


60  Arbitration  and  Award  §  8 

§8.  Award. 

Although  all  the  arbitrators  must  meet  together  and 
hear  the  proofs  and  aHegatioiis  of  the  parties,  an  award 
by  a  majority  of  them  will  be  valid,  unless  the  concur- 
rence of  all  the  arbitrators  is  required  in  the  submis- 
sion.^* 

It  has  been  held  that  the  arbitrators  must  all  be  present 
when  an  award  is  signed,  that  is,  each  must  sign  it  in 
the  presence  of  the  others,  so  that  where  two  of  three 
arbitrators  signed  an  award  when  the  third  was  not 
present,  and  the  third  signed  it  afterwards  when  but  one 
of  the  other  two  was  present,  the  award  was  not  a  valid 
one.^^  The  signature  of  two  of  three  arbitrators,  how- 
ever, would  not  make  it  void,  unless  it  was  made  to 
appear,  on  motion  to  vacate,  that  they  had  signed  in  dis- 
regard of  the  conditions  regulating  execution  by  a  ma- 
jority.'" 

The  award  of  arbitrators  under  the  statute  is  an  offi- 
cial act  and  is  itself  the  evidence  and  authority  upon 
which  the  circuit  court  may  render  judgment.^^  The 
award  will  be  examined  as  a  whole  and  fairly  construed 
according  to  the  principles  which  govern  arbitration 
findings.  All  that  is  required  is  certainty  to  a  common 
intent.  If  an  award  is  sufficiently  definite  to  be  obliga- 
tory as  a  contract,  it  is  sufficiently  so  as  an  award;  '^  but 

28  Jud.    Act,    eh.    45,    §  7 ;    Conip.  31  City    of  Detroit    v.   Jackson,   1 
Laws    1915,     §13652;     McCurdy    v.       Doug.  106. 

Daniell,  135  Mich.  55.  32  Bush   v.    Davis,   34   Mich.    190; 

In  the  ease  of  a  common-law  sub-  Hiscoek  v.  Harris,  74  N.  Y.  108. 
mission  to  arbitration,  tlie  award  An  award  of  a  certain  sum  as  due 
will  be  valid  only  if  it  is  assented  subcontractors  on  a  building,  sub- 
to  by  all  of  the  arbitrators,  unless  ject  to  discharging  any  and  all  liens 
the  agreement  for  submission  other-  on  the  property,  is  sufficiently  defi- 
wise  provides.  Lattin  v.  Gamble,  nite  where  the  liens  could  be  dcfi- 
154  Mich.  177.  nitely      ascertained.        Pigott-Healy 

29  Daniels     v.     Ripley,     10     Mich.  Const.  Co.  v.  H.  A.  Jones  R€al  Es- 
237;  French  v.  Butler,  39  Mich.  79.  tate  Co.,  201  Mich.  102. 

80  Fitch  V.   Constantino  TTydranlir- 
Co.,  44  Mich.   74. 


§  8  Akbiteation  and  Award  61 

where  an  award  leaves  the  amount  due  from  one  party 
to  the  other  to  be  determined  from  an  examination  of 
certain  books  of  account,  and  such  accounts  are  so  in- 
complete that  the  amount  of  the  award  cannot  be  com- 
puted without  the  aid  of  other  evidence,  the  award  is 
void  for  uncertainty.  An  award  that  is  so  uncertain 
and  ambiguous  in  some  of  its  parts  that  it  cannot  be 
enforced  is  void  in  toto.  It  cannot  stand  as  to  part  of 
the  submission  and  be  ineffectual  as  to  the  other  matter 
contained  in  it,  especially  where  it  appears  that  it  was 
the  intent  of  the  parties  that  whatever  differences  existed 
in  connection  with  the  subject-matter  should  be  deter- 
mined by  the  arbitrators.^'  So  an  award  which  in  no 
manner  conforms  to  the  agreement  of  submission  will 
be  disregarded.'*  But  it  is  wisely  settled  that  the  mode 
of  deciding  disputes  by  judges  chosen  by  the  parties 
themselves  for  the  very  occasion  calls  for  every  encour- 
agement from  the  ordinary  tribunals,  and  hence  that 
formal  matters  and  professional  niceties  are  not  to  be  re- 
garded; and  whenever,  by  fair  intendment,  the  proceed- 
ing can  be  upheld,  it  will  be.'^  It  is  a  rule  never  to  raise 
a  presumption  for  the  sake  of  overturning  an  award,  but, 
on  the  contrary,  to  make  every  reasonable  intendment  in 
its  support;  and  therefore  an  award  is  presumed  to  be 
within  the  submission  unless  the  contrary  expressly  ap- 
pears.'^ 

Form  of  Award  of  Arbitrators  Under  Statutory  Submission 

We,  the  undorsignt'd,  having  been  duly  appointed  ar])itrators  by  A.  B. 
and  C.  D.  of  a  coiitiroversy  existing  between  them  in  relation  to  (here 
state   the    subject-matter   of   the   controversy   as   in  the   submission),    and 

33  Mather  v.  Day,  106  Mich.  371;  35  Bush  v.  Davis,  34  Mich.  190. 

Schuyler  v.  Van  Der  Veer,  2  Gaines  36  Bush   v.   Davis,   34   Mich.    190; 

(N.  Y.)    235;   City  of  New  York  v.  Cliicago,  etc.,  R.   Co.  v.  Hughes,   28 

Butler,  1  Barb.   (N.  Y.)   325.  Mich.  186;  Brush  v.  Fisher,  70  Mich. 

34Sawtells  v.  Howard,  104  Mich.  469;    Port    Huron,    etc.,    R.    Co.    v. 

54;     Kearney    v.    Washtenaw    Mut.  Cnllanan,   61    Mich.   22;    Clement   r. 

Fire  Ins.  Co.,  126  Mich.  246.  Coiiistoek,  2  Mich.  359. 


62  Arbitration  and  Award  §  8 

having  been  duly  sworn  faitlifully  and  fairly  to  hear  and  examine  the 
matters  in  controversy  submitted  to  us,  and  make  a  just  award  thereon 
according  to  the  best  of  our  understanding,  and  having  appointed  a  time 
and  place  for  the  hearing,  at  which  time  and  place  the  said  A.  B.  and  C.  D. 
attended  before  us,  and  having  heard  the  proofs  and  allegations  of  the  par- 
ties, and  fully  considered  the  matters  in  controversy,  do  hereby  declare 
and  publish  this,  our  award,  in  relation  to  said  matters,  as  follows: 
(Here  insert  the  subject-matter  of  the  award.) 
Dated,  etc. 

E.  F.   [Seal.] 
G.  H.  [Seal.] 
I.     J.  [Seal.] 
(Add  acknowledgment.) 

§  9.  Confirmation. 

Upon  the  submission  and  tlie  award  made  in  pursu- 
ance of  it  being  filed  with  the  clerk  of  the  court  desig- 
nated in  the  submission  within  one  year  after  making 
the  award,  it  is  the  duty  of  that  court,  by  rule  in  open 
court,  to  confirm  the  award,  unless  it  be  vacated  or  modi- 
fied or  a  decision  thereon  be  postponed.'"^  The  failure  to 
file  the  award  within  the  time  fixed  in  the  submission  is 
no  reason  for  vacating  it  unless  the  parties  have  agreed 
that  it  should  in  such  case  be  void.^^  And  where  the 
submission,  the  proceedings  before  the  arbitrators  and 
the  award  have  been  regular,  the  award  is  conclusive 
upon  the  court,  which,  in  such  case,  has  no  power  to  ex- 
amine into  the  testimony  and,  by  vacating  the  award,  to 
substitute  its  opinion  for  that  of  the  arbitrators.^' 

§  10.  Motion  to  vacate. 

Any  party  complaining  of  an  award  may  move  the 
court  designated  in  the  submission  to  vacate  the  award 
upon  any  of  the  following  grounds :  *" 

37.Tud.    Act,    ch.    45,    §8;    Comp.  v    Hughes,  28   Mich.    186;    Brush   v. 

Laws  1915,  §  13653.  Fisher,    70    Mich.    469;     Michols    v. 

38  Patrick  v.  Batten,  123  Mich.  Western  Underwriters'  Ass'n,  129 
203.  Mich.  417. 

39  Phelps  V.  Wayne  Circuit  Judge,  40  Jud.  Act,  ch.  45,  §9;  Comp. 
117  Mich.  35;   Cliicago,  etc.,  R.  Co.  Laws  1915,  §13654. 


§  11  Akbitration  and  Award  63 

(1)  That  the  award  was  procured  by  corruption,  fraud 
or  other  undue  means.*^ 

(2)  That  there  was  evident  partiality  or  corruption  in 
the  arbitrators  or  either  of  them. 

(3)  That  the  arbitrators  were  guilty  of  misconduct 
in  refusing  to  postpone  the  hearing  upon  sufficient  cause 
shown,  or  in  refusing  to  hear  any  evidence,  pertinent  and 
material  to  the  controversy,  or  any  other  misbehavior 
by  w^hich  the  rights  of  a  party  have  been  prejudiced. 

(4)  That  the  arbitrators  exceeded  their  powers  or  so 
imperfectly  executed  them  that  a  mutual,  final  and  defi- 
nite award  on  the  subject-matter  submitted  was  not 
made. 

The  statutory  remedy  against  an  award  is  by  motion 
to  the  court  at  its  next  term  after  the  award  is  pub- 
lished. The  court  may  vacate  it  for  cause  and  may  or- 
der a  re-hearing  if  that  is  proper,  or  may  modify  and 
correct  it  in  certain  cases,  as  will  be  presently  stated,*^ 
but  can  vacate  it  only  for  the  grounds  above  specified.*^ 

§  11.  Motion  to  modify. 

Any  party  to  submission  may  move  in  the  court 
designated  therein  to  modify  or  correct  the  award  in  the 
following  cases :  ** 

(1)  Where  there  is  an  evident  miscalculation  of  figures 
or  an  evident  mistake  in  the  description  of  some  person, 
thing  or  property  referred  to  in  the  award. 

(2)  Where  the  arbitrators  have  awarded  upon  some 
matter  not  submitted  to  them,  not  affecting  the  merits 
of  the  decision  upon  the  matter  submitted. 

(3)  When  the  award  is  imperfect  in  some  matter  of 

41  Beam  v.  Maeomber,  33  Mich.  Phelps  v.  Wayne  Circuit  Judge,  117 
127 ;  Hewitt  v.  Village  of  Keed  City,      Mich.  35. 

124  Mich.  6.  44  Jud.    Act,  eh.   45,    §  10 ;    Comp. 

42  Cooper  V.  Andrews,  44  Mich.  94.       Laws      1915,      §13655;      James     v. 

43  Taylor  v.  Smith,  93  Mich.  160;       Schroeder,  61  Mich.  28. 


64  Ahbitratiox  and  'Awaed  §  11 

fomi  not  aftecting  the  merits  of  the  controversy,  and 
where,  if  it  had  been  a  verdict,  the  defect  could  have  been 
amended  or  disregarded  by  the  court  according  to  the 
provisions  of  law. 

It  should  be  observed  that  the  court  cannot  modify 
or  correct  an  award  unless  the  arbitrators  have  reported 
the  evidence  taken  before  them  or  findings  of  fact  upon 
which  their  award  is  based  or  there  is  something  before 
the  court  by  which  it  can  determine  what  the  award  ought 
to  have  been." 

§  12.  Time  for  and  disposition  of  motion  to  vacate 

or  modify. 

Every  application  to  vacate  or  modify  an  award  must 
be  made  to  the  court  designated  in  the  submission  at 
the  next  term  after  the  publication  of  the  award,  upon 
due  notice  to  the  adverse  party,  as  in  other  cases  of 
special  motions,  if  there  be  time  for  that  purpose;  and, 
if  there  be  not  time,  the  court  or  any  judge  thereof  may, 
upon  good  cause  shown,  order  a  stay  of  proceedings  on 
the  award,  either  absolutely  or  upon  such  terms  as  ap- 
pear just,  until  the  term  of  court  next  after  the  first 
term." 

On  such  application,  the  court  may  vacate  the  award 
in  any  of  the  cases  before  specified,  and  may,  in  its  dis- 
cretion, direct  a  re-hearing  by  the  same  arbitrators ;  and, 
in  the  cases  mentioned,  the  court  may  modify  and  cor- 
rect the  award  so  as  to  effect  the  intent  thereof  and  to 
promote  justice  between  the  parties.'*' 

§  13.  Entering  judgment  on. 

Upon  an  award  being  confirmed  or  modified,  the  court 
will  render  judgment  in  favor  of  the  party  to  whom  any 

45  Taylor  v.  Smith,  93  Mich.  160.  47  .lud.   Act,   ch.   45,    §12;    Comp. 

46Jud.   Act,  ch.   45,   §11;    Comp.      Laws  1915,  §13657. 
Laws  1915,  §  13656. 


§  15  ARBITRATIOISr    AND    AwARD  65 

sum  of  money  or  damages  have  been  awarded,  that  he 
recover  the  same ;  and,  if  the  award  has  ordered  any  act 
to  be  done  by  either  party,  judgment  will  be  entered  that 
such  act  be  done  according  to  such  order.*^  The  award 
is  an  official  act  and  is  itself  the  evidence  and  authority 
upon  which  the  court  may  render  judgment.*^ 

§14.  Costs. 

The  costs  of  the  proceedings  are  to  be  taxed  as  in  suits, 
and,  if  no  provision  for  the  fees  and  expenses  of  the  arbi- 
trators has  been  made  in  the  award,  the  court  will  make 
the  same  allowance  as  provided  by  law  in  cases  of  refer- 
ences.^°  The  judgment  of  the  court  upon  an  award  can- 
not be  said  to  be  inconsistent  with  the  award  because  it 
provided  for  the  payment  of  the  costs  of  the  court  to  be 
taxed,  while  the  award  provided  that  the  expenses  and 
charges  of  the  arbitration  should  be  mutually  borne  and 
paid  by  the  parties,  as  the  costs  in  court  and  the  expense 
of  the  arbitration  are  two  different  things.^^ 

§  15.  Judgment  record. 

A  record  of  the  judgment  upon  an  award  should  be 
made,  commencing  with  a  memorandum  reciting  the  sub- 
mission, then  stating  the  hearing  before  the  arbitrators, 
their  award,  the  proceedings  of  the  court  thereupon  in 
modifying  or  confirming  the  award  and  the  judgment  of 
the  court  for  the  recovery  of  the  debt  or  damages  awarded 
and  that  the  parties  perform  the  acts  ordered  by  the 
award  and  for  the  recovery  of  the  costs  allowed.^'^ 

48  Jud.   Act,  ch.  45,   §  13 ;    Oomp.  On  vacating  an  award,  the  court 
Laws  1915,  §  13658.  may,   in  its  discretion,  award  costs 

49  City   of   Detroit   v.   Jackson,    1  to  the  party  prevailing  on  the  mo- 
Doug.  106.  tion   to   vacate.     Jud.    Act,   ch.   45, 

60  Jud.   Act,  ch.   45,    §14;    Comp.       §19;  Comp.  Laws  1915,  §13664. 
Laws     1915,     §13659;     Clement    t.  62  Jud.   Act,  ch.   45,   §15;    Comp. 
Comstock,     2     Mich.     359;     Ott     v.      Laws  1915,  §  13660. 
Schroeppel,  3  Barb.   (N.  Y.)   56. 

61  Chicago,  etc.,  E.  Co.  v.  Hughes, 
28  Mich.  186. 

1  Abbott— 5 


^^  Arbitration  and  Award  §  16 

§  16.  Effect  of  judgment;  execution. 

The  record  of  the  judgment  must  be  filed  and  docketed 
as  records  of  judgments  in  other  cases  and  will  have  the 
same  force  and  effect  in  all  respects,  be  subject  to  all  the 
provisions  of  law  in  relation  to  judgments  in  actions  and 
may  in  like  manner  be  removed  and  reversed  by  writ 
of  error.  Execution  may  issue  against  the  property  or 
person  of  the  party  against  whom  a  recovery  is  had  in 
all  respects  as  upon  other  judgments." 

§  17.  Enforcing  judgment  by  rule  and  attachment. 

When,  by  the  judgment  upon  an  award,  a  party  is  re- 
quired to  perform  some  act  other  than  the  payment  of 
money,  the  court  rendering  the  judgment  will  enforce  it 
by  rule,  and  the  party  refusing  or  neglecting  to  perform 
and  execute  the  act  or  any  part  of  it  will  be  subject  to 
all  the  penalties  of  disobeying  an  order  of  the  court  and 
may  be  proceeded  against  in- the  manner  provided  by  law 
in  such  cases." 

§  18.  Writ  of  error. 

When  a  writ  of  error  is  brought  on  a  judgment  upon 
an  award  rendered  in  the  circuit  court,  certified  copies 
of  the  original  affidavits  upon  which  any  application  in 
relation  to  the  award  was  founded,  and  of  all  other  affi- 
davits and  papers  relating  to  the  application,  should  be 
returned  with  the  record  of  the  judgment,  and  the  court 
to  which  the  w^rit  is  returned  may  reverse,  modify,  amend 
or  affirai  the  judgment  or  any  part  of  it  according  to 
justice."    But  error  does  not  lie,  on  the  record  alone,  on 

63  Jud.   Aft,   ch.   45,    §16;    Comp.  Ingham.    Circuit    Judge,    1G8    Mich. 

Laws  1915,   §  13661.  451. 

It  is  proper  to  refuse  to  recall  ex-  54  Jud.   Act,   ch.   45,    §  18;    Comp. 

ecution  until  the  determination  of  a  Laws  1915,  §  13663. 

chancery    proceeding    to    enjoin    the  55  Jud.   Act,   ch.   45,    8  17 ;    Comp. 

enforcement  of  the  award.     Early  v.  Laws   1915,   §  15662. 


§  19  Akbitration  and  Award  &j 

a  judgment  upon  an  award,  where  the  submission  is  in 
due  form  and  the  award  is  one  that  could  have  been  law- 
fully made,  where  the  record  shows  what  the  statute  re- 
quires.^^ 

Upon  every  order  vacating  an  award  made  by  a  circuit 
court,  the  party  aggrieved  may  bring  a  writ  of  error  as 
upon  any  other  judgment  of  the  court.  The  return  to 
the  writ  of  error  in-  such  case  should  include  certified 
copies  of  the  order  and  of  all  affidavits  and  papers  used 
on  the  application.  The  court  to  which  the  writ  is  re- 
turned will  proceed  to  confirm  or  reverse  the  order  as 
shall  be  just."  If  the  order  be  reversed,  the  proceedings 
will  be  remitted  to  the  court  from  which  they  were  re- 
moved for  that  court  to  proceed  thereon,  or  the  court  to 
which  the  proceedings  have  been  returned  may  modify 
or  confirm  the  award  and  render  judgment  thereon  in  the 
same  manner  and  with  the  like  effect  as  if  that  court  had 
been  designated  in  the  submission.^* 

§  19.  Statutory  submission  irrevocable. 

Although  either  party  to  an  agreement  for  a  common- 
law  arbitration  may  revoke  the  authority  of  the  arbitra- 
tors at  any  time  before  the  award,^®  neither  party  to  a 
submission  under  the  statute  has  power  to  revoke  it 
without  the  consent  of  the  other  party.  If  either  party 
neglects  to  appear  before  the  arbitrators  after  due  notice, 
the  arbitrators  may  nevertheless  proceed  to  hear  and 
determine  the  matters  submitted  to  them  upon  the  evi- 
dence produced  by  the  other  party.^° 

56  Cooper  V.  Andrews,  44  Mich.  94.  A  common-law  submission  to  arbi- 

6VJud.   Act,   ch.   45,   §20;    Comp.  tration  is  revocable  at  the  pleasure 

Laws  1915,  §  13665.  of    either    party.      Nurney   v.   Fire- 

68  Jud.   Act,  ch.   45,    §  21 ;    Comp.  man 's  Fund  Ins.  Co.,  63  Mich.  633 ; 

Laws  1915,  §  13666.  Wood  v.  Lafayette,  46  N.  Y.  484. 

SSChijipewa   Lumber   Co.    v.    Php-  60,Tud.    Act,   ch.   45,    §23;    Comp. 

nix  Ins.  Co.,  80  Mich.  116.  Laws  19L5,  S  13668. 


68  Arbitration  and  Award  §  20 

§  20.  Equity  jurisdiction. 

It  is  expressly  provided  that  nothing  contained  in  the 
statute  in  relation  to  submission  to  arbitration  shall  be 
construed  to  impair,  diminish  or  in  any  manner  affect 
the  power  and  authority  of  any  court  of  chancery  over 
arbitrators,  awards  or  the  parties  thereto  or  to  impair 
or  affect  any  action  upon  any  award  or  upon  any  bond 
or  other  engagement  to  abide  an  award.^^  A  court  of 
equity  has  power  to  set  aside  an  award  and  may  stay  pro- 
ceedings at  law  to  enforce  it.^^ 

§  21.  Effect  on  pending  suit. 

A  common  law  agreement  to  arbitrate  the  subject- 
matter  of  a  suit  does  not  operate  to  discontinue  the  suit 
or  even  stay  the  proceedings  therein,  although  it  might 
be  used  as  the  basis  of  an  application  for  a  stay.^^  It 
does  not  bar  an  action  based  upon  the  same  grievance.^* 
But  a  submission  to  arbitration  under  the  statute  of  the 
subject-matter  of  a  suit  will  operate  as  a  legal  discon- 
tinuance of  the  cause,  where  an  award  has  been  made  in 
pursuance  of  the  submission.** 

ARGUMENT  OF  COUNSEL 

8ee  Trial;  Error,  Writ  op;  Keferences;  Supreme  Court;  New  Trial. 

ARRAY 

See  Jury. 

eiJiid.   Act,   ch.   45,    §22;    Comp.  65  Dunn    v.    Sutliff,    1    Mich,    24; 

Laws  1915,  §  13667.  Vanderhoof  v.   Dean,   1   Mich.   463 ; 

62  Early  v.  Ingham  Circuit  Judge,  Callanan  v.  Port  Huron,  etc.,  R.  Co., 

166  Mich.  517;  Kearney  v.  Washte-  61    Mich.   15;    Muckey  v.  Pierce,   3 

naw  Mut.   Fire  Ins.   Co.,  126  Mich.  Wis.   307;   Bigelow  v.   Goss,   5  Wis. 

246.  421;  Keep  v.  Keep,  17  Hun  (N.  Y.) 

68  Callanan  v.  Port  Huron,  etc.,  R.  152;  Baldwin  v.  Barrett,  4  Hun  (N 

Co.,  61  Mich.  15.  Y.)   119. 

64  Nurney  v.  Fireman  's  Fund  Ins. 
Co.,  63  Mich.  633;  McGunn  v.  Han- 
Un,  29  Mich.  476. 


Assault  and  Batteey  69 

ARREST 

See  Commencement  of  Actions  (capias  to  commence  action) ;  Bail; 
Executions;  Judgment  (arrest  of  judgment);  Habeas  Corpus. 

ASSAULT  AND  BATTERY 

Cross-Beferences:  Pleading;  Limitation  op  Actions;  Abatement; 
Costs. 

An  action  for  assault  and  battery  is  a  common  form 
of  civil  action  ex  delicto,  and  formerly  the  proper  form 
of  action  was  trespass.  The  declaration  is  a  very  simple 
form  as  will  be  noticed  by  referring  to  the  first  form  ap- 
pended hereto  which  is  the  approved  form  of  the  state 
bar  association.  The  few  decisions  of  the  Supreme  Court 
of  this  state  in  reference  to  the  pleadings  in  such  an 
action  are  merely  applications  of  well  known  rules  of 
pleading  ^  elsewhere  treated  of .^ 

Form  of  Declaration  Approved  by  State  Bar  Association 

(Title  of  court  and  cause.) 
The  plaintiff  says: 

1.  That,  on    ,  19. .,  at   ,  the  defendant  assaulted  and  beat 

the  plaintiff  by  striking  him  in  the  face  with  a  stick. 

2.  That,  in  consequence,  the  plaintiff  suffered  great  pain  and  was  for 
a  long  time  unable  to  transact  his  business  of  a and  incurred  ex- 
penses for  nursing  and  for  medical  attendance,  as  follows: 

Loss  of  earnings  for weeks,  at per  week $ 

Expense  of  nursing,  medicines  and  medical  attendance $ 

Total  $ 

3.  Wherefore,  etc. 

Another  Form 

The  plaintiff  says: 

1.  That  the  said  defendant,  heretofore,  to  wit,  on ,  with  force  and 

arms,  assaulted  the  said  plaintiff,  to  wit,  at ,  in  the  county  aforesaid, 

and  then  and  there  beat,  bruised,  wounded  and  ill-treated  him.  2.  That 
thereby  the  said  plaintiff  became  and  was  sick,  sore,  lame  and  disordered, 

1  See  Reynolds  v.  Mecosta  Circuit      tcr  v.  Looniis,  47  Mich.  16;  Sheldon 
Judge,    148   Mich.   470;    Lindsay   v.       v.  Sullivan,  45  Mich.  324. 
Wabash  R.  Co.,  141  Mich.  204;  Heis-  2  See  Pleading. 


70  Assault  and  Battery 

and  so  continued  for  a  long  space  of  time,  to  wit,  thence  hitherto.  3.  That, 
during  all  of  which  time,  the  said  plaintiff  suffered  great  pain  and  was  pre- 
vented from  attending  to  his  necessary  affairs  and  business.  4.  That  also 
the  said  plaintiff  was  obliged  to  incur  and  did  incur  great  expense,  to  wit, 
dollars,  in  endeavoring  to  be  cured  of  the  sickness,  soreness,  lame- 
ness and  disorder,  so  occasioned  as  aforesaid. 

Form  of  Count  for  Assault  and  Battery  and  False  Imprisonment 

The  plaintiff  says: 

1.  That  the  said  defendant,  heretofore,  to  wit,  on ,  with  force  and 

arms,  assaulted  the  said  plaintiff,  to  wit,  at  ,  in  the  county  afore- 
said, and  then  and  there  seized  and  laid  hold  of  the  said  plaintiff,  and, 
with  great  force  and  violence,  pulled  and  dragged  him  about,  and  then  and 
there  gave  and  struck  the  said  plaintiff  divers  blows  and  strokes,  and  forced 
and  compelled  the  said  plaintiff  to  go  from  and  out  of  a  certain  dwelling 

house,  situate  and  being  at ,  into  the  public  streets,  and  then  and 

there  forced  and  compelled  the  said  plaintiff  to   go  in  and  along  divers 

public  streets  to  a  certain  police  oflBce,  situate  and  being  at ,  and  then 

and  there  imprisoned  him,  and  kept  and  detained  him  in  prison,  without  any 
reasonable  or  probable  cause  whatsoever,  for  a  long  space  of  time,  to  wit, 

foT  the  space  of then  next  following,  contrary  to  law  and  against  the 

will  of  the  said  plaintiff.  2.  That  thereby  the  said  plaintiff  was  then  and 
there  greatly  hurt,  bruised  and  wounded  and  greatly  exposed  and  injured 
in  his  credit  and  circumstances. 

Form  of  Count  by  Husband  for  Assault  Upon  His  Wife 

The  plaintiff  says: 

1.  That  the  said  defendant,  heretofore,  to  wit,  on ,  with  force  and 

arms,  made  an  assault  upon  M.  B.,  who  was  then  and  there  the  wife  of  the 

said  plaintiff,  to  wit,  at ,  and  then  and  there  violently  kicked,  beat, 

bruised,  wounded  and  ill-treated  the  said  M.  B.  2.  That  thereby  the  said 
M.  B.  became  and  was  sick,  sotc,  lame  and  disordered,  and  so  remained  and 
continued  for  a  long  space  of  time,  to  wit,  thence  hitherto.  3.  That  thereby 
the  said  plaintiff,  during  all  of  said  time,  lost  and  was  deprived  of  the 
comfort,  benefit  and  assistance  of  the  said  M.  B.,  in  his  domestic  affairs, 
which  he  might,  and  otherwise  would,  have  had.  4.  That  also  thereby  the 
said  i>laintiff  was  obliged  to  incur  and  did  incur  great  expense,  to  wit, 
dollars,  in  endeavoring  to  heal  and  cure  the  said  M.  B.  of  the  sick- 
ness, soreness,  lameness  and  disorder,  so  occasioned  as  aforesaid. 

Form  of  Count  for  Riding  or  Driving  Against  Plaintiff 

The  plaintiff  says: 

1.  That  the  said  defendant,  heretofore,  to  wit,  on ,  with  force  and 

arms,  to  wit,  with  a  certain  horse   (drawing  a  certain  carriage,  if  such  be 

tlie   fact),   assaulted   the   said   plaintiff,   to   wit,   at    ,   in   the   county 

aforesaid,  and   then  and  there  rode    (or,  drove)    the  said  horse   (and   said 


Assignments  71 

carriage)  upon,  against  and  over  the  said  plaintiff,  and  then  and  there,  with 
force  and  violence,  knocked  the  said  plaintiff  down  to  and  upon  the  ground, 
and  trod  and  trampled  upon  and  against  the  said  plaintiff,  and  then  and 
there,  with  the  said  horse  (and  the  said  carriage),  gave  and  struck  the 
plaintiff  divers  blows  and  kicked,  bruised,  wounded  and  ill-treated  him. 

Form  of  Count  for  Running  Carriage  Against  Plaintiff's  Carriage 

The  plaintiff  says: 

1.  That  the  said  defendant,  heretofore,  to  wit,  on ,  at ,  with 

force  and  arms,  drove  a  certain  vehicle,  to  wit,  a  heavy  wagon,  which  he, 
the  said  defendant,  was  then  and  there  driving  along  the  public  highway, 
with  great  force  and  violence,  upon  and  against  a  certain  other  vehicle,  to 
wit,  a  certain  carriage,,  of  him,  the  said  plaintiff,  of  great  value,  to  wit,  of 

the  value  of   dollars,  in  which  said  carriage  the  said  plaintiff  was 

riding  in  and  along  the  said  public  highway.  2.  That  the  said  defendant 
thereby  then  and  there  greatly  broke  to  pieces,  ruined,  damaged  and 
spoiled  the  said  carriage  of  the  said  plaintiff.  3.  That  thereby  also  the 
said  plaintiff  was  then  and  there  cast  and  thrown  with  great  force  and 
violence  from  and  out  of  his  said  carriage  down  to  and  upon  the  ground. 
4.  That   by   means   thereof,   the   said   plaintiff   was   afterwards   obliged   to 

incur  and  did  incur  great  expense,  to  wit,   dollars,  in  repairing  the 

damage  so  done  to  his  said  carriage.  5.  That  also,  by  means  thereof,  the 
said  plaintiff  then  and  there  became  and  was  greatly  hurt,  bruised,  wounded, 
sick,  sore,  lame  and  disordered,  and  so  remained  and  continued  for  a  long 

space  of  time,  to  writ,  for  the  space  of   then  next  following,  and, 

during  all  of  that  time,  suffered  great  pain  and  was  prevented  from  attend- 
ing to  his  necessary  affairs  and  business  by  him  during  all  that  time  to  be 
attended  to.     6.  That  the  said  plaintiff  was  also  thereby  obliged  to  incur 

and  did  incur  great  expense,  to  wit, dollars,  in  endeavoring  to  be 

cured  of  the  sickness,  soreness,  lameness,  and  disorder  so  occasioned  as 
aforesaid. 

ASSIGNMENTS 

The  effect  of  an  assignment  is  often  of  importance  as 
to  the  right  to  sue  (see  Parties ),_the  right  to  set  off  judg- 
ments (see  Judgments),  the  right  to  exemptions  (see 
Exemptions),  as  ground  for  attachment  (see  Attach- 
ment), as  abating  the  action  (see  Abatement),  etc.  As- 
signment of  particular  obUgations  is  treated  of  in  the 
articles  dealing  with  such  obligations  (see  Bail,  Jail 
Liberties,  Replevin,  Dower,  etc.).  Pleading  an  assign- 
ment (see  Pleading)  is  also  contained  in  another  article. 


72  Assignments  foe  Benefit  of  Creditoks 

ASSIGNMENTS  FOR  BENEFIT  OF  CREDITORS 

A  separate  chapter  of  the  Judicature  Act  (c.  42)  is 
devoted  to  such  assignments.  However,  such  assign- 
ments are  beyond  the  scope  of  this  work.  Whether  the 
assignee  is  subject  to  garnishment  (see  Garnishment) 
and  whether  the  property  assigned  is  subject  to  execu- 
tion (see  Execution)  is  answered  in  other  articles. 

ASSIGNMENTS  OF  ERROR 

i  1.  Necessity  for. 

§  2.  Requisites  of. 

§  3.  As  joint  or  several. 

§  4.  Number  of. 

§  5.  Effect  of  absence  of. 

§  6.  Effect  of  defects  in, 

§  7.  Amendment  of. 

§  8.  Service  of. 

Cross-Beferences:    Ebrob,  Writ  of;  Bill  op  Exceptions. 

§  1.  Necessity  for. 

There  must  accompany  every  bill  of  exceptions,  at  the 
time  of  its  service  and  at  the  time  of  its  settlement,  a 
detailed  assignment  of  all  the  alleged  errors  upon  which 
the  appellant  proposes  to  rely,^  and  no  bill  of  exceptions 
can  be  signed  unless  accompanied  by  such  assignment 
of  errors,  and  no  errors  will  be  considered  by  the  supreme 
court  which  are  not  a  part  of  such  assignment.^ 

1  See  Bill  of  Exceptions.  appellee  stipulated  to  the  settlement 

A  writ  of  error  will  be  dismissed  of  the  bill.    Hubbard  v.  Garner,  115 

where  the  assignments  of  error  did  Mich.  406. 

not  accompany  the  bill  of  exceptions  2'Cir.  Ct.  Rule  66,  §§5,  6.     Com- 

.  at  the  time  of  the  signing  thereof,  pare,  however,  Mittelstadt  v.  Kelly, 

although  subsequently  filed.     Roush  202  Mich.  524,  and  see  Eebor,  Writ 

V.     Darmstaetter,     113     Mich.     535.  of. 

Compare  Conely  v.  Dudley,  111  In  one  case,  after  a  reversal  by 
Mich.  122.  the  supreme  court,  the  reversal  was 
But  an  objection  that  the  assign-  set  aside  on  rehearing  and  the  judg- 
ments of  error  did  not  accompany  ment  of  the  lower  court  affirmed, 
the  bill  is  without  force  where  the  where  the  ground  for  reversal  was 


§  2  Assignments  of  Eeeok  73 

However,  the  errors  of  which  an  appellant  complains 
are  not  always  such  as  to  require  a  bill  of  exceptions  to 
be  settled  and  filed,  being  such  as  appear  by  the  record 
without  the  instrumentality  of  a  bill  of  exceptions.  In 
such  a  case,  the  assignment  of  errors  must  be  made  after 
the  writ  of  error  issues.  It  is,  therefore,  prescribed  by 
rule  that  the  party  suing  out  a  writ  of  error  shall  have 
ten  days  after  the  return  day  of  the  writ  within  which  to 
assign  error  in  cases  where  no  bill  of  exceptions  is  set- 
tled.3 

§  2.  Requisites  of. 

Every  assignment  of  error  must  be  special.  No  judg- 
ment or  proceedings  will  be  reversed  or  annulled  for  any 
defect  or  error  other  than  such  as  has  been  specially  as- 
signed.* J£  possible,  every  assignment  should  point  out 
the  precise  question  involved.^  Thus,  an  assignment 
that  the  verdict  is  contrary  to  the  evidence  does  not  raise 
the  question  whether  the  verdict  is  against  the  weight  of 

not  raised  by  assignments  of  error  Mioh.    606;    People    v.    Lewis,    166 

nor  discussed  in  the  brief.     Nissly  Mich.   513;    Weber   v.   Billings,   184 

V.   Detroit,   etc.,   B.   Co.,   168   Mich.  Mich.  119;    Totten  v.  Burhans,  103 

676,  682.  Mich.  6;  Beauerle  v.  Michigan  Cent. 

3  Sup.  Ct.  Kule  11.  R.  Co.,  152  Mich,  345;  Pichler  v,  De 

4  Sup.  Ct.  Rule  11;  Andre  v.  Har-  Hate,  125  Mich.  247;  Detroit  United 
din,  32  Mich.  324;  Waterman  V.  Wa-  Ry.  v.  City  of  Pontiac,  193  Mich, 
terman,  34  Mich.  490;  Fowler  v,  466;  Martinson  v.  State  Bank  of 
Gilbert,  38  Mich.  292;  Polhemus  v.  Belview,  137  Minn.  476;  Roberts  v. 
Ann  Arbor  Sav.  Bank,  27  Mich,  44;  Smith,  115  Mich.  5;  Weber  v,  Bil- 
Lymburner  v,  Jenkinson,  50  Mich.  lings,  184  Mich,  119;  Pichler  v.  De 
488;    Hitchcock   v,   Pratt,   51   Mich.  Hate,  125  Mich.  247. 


Burt     V.     Olcott,     33     Mich.  6  In    re    Hoffman's    Estate,    183 

Wheeler   &   Wilson    Mfg.    Co,      Mich.  67;  Finch  v.  Karste,  97  Mich. 

20. 


263; 

178; 

V.  Walker,  41  Mich.  239 ;  Jennison  v. 

Haire,     29     Mich.     207;     Finch     v.  Assignment  that  there  is  no  evi- 

Kargte,    97    Mich.    20;    Wanner    v.      dence  in  the  case  to  support  a  ver- 

Mears,     102     Mich.     554;     O 'Toole      diet  for  plaintiff  is  definite.     Sand- 

V.  Ohio  German  Fire  Ins.   Co.,  159       strom   v.   Minneapolis,   etc.,   R,   Co., 

Mich,    187;    Stevenson  v.   Woltman,      198  Mich,  99, 

81  Mich.  200;  Weist  v.  Morlock,  116 


74  Assignments  of  Error  §  2 

the  evidence.^  An  assignment  that  judgment  should  have 
been  rendered  for  the  appellant  is  too  general  to  be  con- 
sidered by  the  court,''^  as  is  an  assignment  that  the  court 
''eiTed  in  directing  the  jurj^  to  find  a  verdict  in  favor  of 
the  defendant, ' '  *  unless  it  is  apparent  from  the  record 
that  the  error  relied  upon  is  either  that  there  was  some 
evidence  in  the  case  on  which  the  jury  might  find  for  the 
plaintiff^  or  that  the  court  improperly  held  the  plain- 
tiff's declaration  to  be  insufficient.^"  So,  also,  an  assign- 
ment that  the  court  erred  in  not  directing  a  verdict  for 
the  defendant, ^^  or  that  ''the  court  erred  in  rendering  a 
judgment  for  the  defendant, "  ^^  is  too  general.  An  as- 
signment of  error  on  a  direction  of  verdict  for  the  de- 
fendant is  distinguishable  from  a  direction  for  a 
plaintiff  or  a  refusal  to  direct  for  plaintiff  or  defendant, 
because  in  either  of  the  latter  cases  the  appellant  can 
point  out  the  error  specifically,  while  in  the  fomier  the 
record  may  be  such  that  it  is  impossible  for  him  to  do  so.^' 
An  assignment  which  points  to  the  whole  of  a  charge 
of  the  court  to  the  jury  is  too  general  especially  where 
it  is  made  up  of  distinct  propositions,  some  of  which  are 
good,  and  cannot  avail  to  reach  any  of  the  propositions 
which  may  be  bad."    An  assignment  of  error  relating  to 

6  Eberts  v.  Mt.  Clemens  Sugar  Co.,  erdy  v.  Port  Huron,  etc.,  R.  Co.,  156 
182  Mich.  449.  Mich.  211. 

7  Webster  v.  Fisk,  9  Mich.  250 ;  But  an  assignment  adding  ' '  as  re- 
Wheeler  &  Wilson  Mfg.  Co.  v.  quested  by  the  defendant  at  the  close 
Walker,  41  Mieh.  2.39 ;  Altman  v.  of  the  testimony  in  the  case ' '  was 
WTieeler,   18  Mich.   240.  held   sufficient.     Nelson  v.  Michigan 

8  Johnson  v.  Ballou,  25  Mieh.  460.  Tanning  &   Extract   Co.,   184   Mich. 

9  Conely  v.  Dudley,  111  Mich.  122.  108. 

10  Wolfe  V.  Stack,  153  Mieh.  445.  12  Hecock  v.  Van  Dusen,  96  Mich. 

11  Alberts  v.  Village  of  Vernon,  96  573;  Bills  v.  A.  W.  Stevens  Co.,  146 
Mich.  549;  Jackson  Bridge  &  Iron  Mich.  515;  Wheeler  &  Wilson  Mfg. 
Co.  V.  Lancashire  Ins.  Co.,  122  Mieh.  Co.  v.  Walker,  41  Mich.  239. 

433;    Oanerdy   v.   Port  Huron,   etc,  13  Wolfe  v.  Stack,  153  Mich.  445; 

R.  Co.,  156  Mich.  211;   Gold  v.  De-  Wcller    v.    Harrison    Land    Co.,    195 

troit    United    Ry.,    169    Mich.    178;  Mich.  624. 

Wolfe  V.  Stack,  153  Mieh.  445;  Can-  14  Tapper    v.    Kilduff,    25    Mieh. 


Assignments  of  Error 


70 


the  instruction  to  the  jury  "that  there  was  manifest 
error  in  the  charge  of  said  court  as  given  to  said  jury" 
does  not  specify  any  particular  defect  and  leaves  the  ap- 
pellate court  as  much  in  the  dark  as  to  the  nature  of  the 
objection  of  the  appellant  or  the  portion  of  the  instruc- 
tion deemed  to  be  wrong  as  if  the  assignment  were 
stricken  out,  and  it  is,  therefore,  too  general  to  be  con- 
sidered.^^ An  assignment  that  there  is  no  evidence  to 
support  the  finding,  applying  to  the  entire  group  of  facts 
found,  and  not  to  any  one  in  particular,  is  too  broad  to 
be  noticed."  But  an  assignment  that  "the  court  erred 
in  refusing  to  grant  the  requests  submitted  by  defend- 
ant's counsel  and  in  refusing  to  instruct  the  juiy  as 
stated  in  said  several  requests;  that  the  refusal  of  each 
and  every  one  of  said  defendant's  requests  was  error," 
points  out  specifically  what  is  relied  upon."  So  an  as- 
signment "that  there  is  error  in  this,  to  wit,  that  the 
judge  of  said  circuit  court,  at  the  trial  of  said  cause,  gave 
the  several  instructions  to  the  jury  asked  by  the  de- 
fendant, and  refused  to  give  the  several  instructions,  or 
any  or  either  of  them,  asked  for  by  the  plaintiffs,"  is 
sufficiently  special,  the  words,  "several  instructions," 

394;    Brown    v.    Mitts,    187    Mieh.  Danielson    v.    Dyckman,    26    Mich. 

469;  Wheeler  &  Wilson  Mfg.  Co.  v.  169;    Goodsell    v.    Seeley,    46    Mich. 

Walker,    41    Mieh.    239;    Finch    v.  623;  People  v.  Ponsford,  181  Mieh. 

Karste,  97  Mieh.  20 ;  Van  Leuvan  v.  660,  670 ;  Nissly  v.  Detroit,  etc.,  R. 

Ann  Arbor  R.   Co.,   167  Mich.  355;  Co.,  168  Mich.  676,  682;  Springer  v. 

Weston    V.    Dunn,    168    Mich.    563;  Fuller,  196  Mich.  628. 

Plumb  V.  Hecla  Co.,  157  Mich.  562 ;  16  Green  v.  Brooking,  23  Mich.  48 ; 

Snyder  v.  Patton  &  Gibson  Co.,  143  Pratt    v.    Burhans,    84    Mich.    487; 

Mich.  350;  Nissly  v.  Detroit,  etc.,  R.  People  v.   De  Fore,   64   Mich.   693; 

Co.,  168  Mich.  678;  Pray  V,  Caldwell,  Nissly  v.  Detroit,  etc.,  R.  Co.,   168 

50  Mieh.  222;   McAllister  v.  Engle,  Mich.  676;  Snyder  v.  Patton  &  Gib- 

52    Mich.    56;    Geary   v.   People,   22  son  Co.,  143  Mieh.  350;  Springer  v. 

Mieh.    220;    Edgell    v.    Francis,    86  Fuller,  196  Mich.  628. 

Mich.  232;  Keystone  Lumber  &  Salt  16  Beliler  v.  Drury,  51  Mieh.  111. 

Mfg.    Co.    V.    Dole,    43    Mieh.    370;  17  People    v.    De    Fore,    64    Midi. 

Prescott  V.  Patterson,  49  Mich.  622 ;  693. 


76  Assignments  of  Erroe  §  2 

being  construed  distributively  and  as  applying  to  each ;  " 
but  an  assignment  that  *Hhe  said  circuit  judge  erred  in 
refusing  to  grant  the  said  defendant's  requests"  will  not 
be  taken  distributively,  and  therefore  if  any  of  the  re- 
quests were  in  fact  given  or  were  properly  refused,  the 
assignment  will  avail  the  appellant  nothing. ^^  An  as- 
signment that  the  findings  of  fact  *'do  not  support  the 
findings  and  conclusions  of  law,"  ordinarily  is  not  suf- 
ficient,^" but  it  is  sufficient  where  the  only  conclusion  of 
law  was  that  plaintiif  was  entitled  to  judgment.^^ 

An  error  affecting  only  one  of  two  defendants  in  a 
joint  judgment  can  only  be  reached  by  special  assign- 
ment of  such  error;  and  a  general  assignment  that  the 
finding  does  not  support  the  judgment,  is  not  sufficient 
if  the  judgment  is  good  against  either  of  the  defend- 
ants.^^ When  the  error  assigned  is  purely  technical  in 
its  character,  strict  technical  certainty  will  be  required 
in  its  assignment.  Thus  an  objection  to  a  writ  that  it 
is  not  tested  in  the  name  of  the  people  of  the  State  of 
Michigan,  is  not  sufficient  to  allow  the  party  to  make  the 
point  that  the  style  of  the  writ  is  not  in  the  name  of  the 
people,  etc.^' 

The  rule  that  every  assignment  of  error  shall  be  special 
requires  that  every  error  relied  upon  must  be  pointed 
out  with  such  certainty  that  the  appellee  and  the  court 
may  see,  from  the  assignment  itself,  the  particular  ground 
upon  which  a  reversal  is  claimed.^*  But  where  the 
ground  is  fairly  indicated,  even  if  not  precisely  stated,  it 

ISNiles  V.  Bhodes,  7  Mich.  374.  21  Union  Tel.  Co.  v.  Ingersoll,  178 

WDanielson  v.  Dyckman,  26  Mich.  Mich.  187. 

169;    People   v.   Sweeney,   55   Mich.  22  Continental  Imp.  Co.  v.  Ives,  30 

586;  Finch  v.  Karste,  97  Mich.  20;  Mich.  448. 

Brown    v.    Mitts,    187    Mich.    469 ;  23  Johnson  v.  Provincial  Ins.   Co., 

Eberts   v.    Mt.    Clemens   Sugar   Co.,  12  Mich.  216. 

182  Mich,  449.  24Niles  v.   Ehodes,   7   Mich.   374; 

20  McMillan  v.  Cheese  Factory,  23  Collin  v.  Kittelberger,  193  Mich.  133. 
Mich.  544. 


§  7  Assignments  of  Erkok  77 

is  sufficient.^^    If,  however,  an  assignment  is  ambiguous, 
it  will  be  construed  most  favorably  for  the  appellee.^^ 

An  assignment  of  error  that  ''the  court  eiTed  in  find- 
ing as  a  question  of  law  that  the  plaintiff  was  guilty  of 
contributory  negligence"  is  sufficiently  specific.^' 

§  3.  As  joint  or  several. 

In  an  action  of  tort,  where  several  defendants  unite  in 
bringing  a  writ  of  error,  and  assign  errors  jointly,  the 
assignment  will  be  considered  joint  and  several,  or  joint 
or  several,  as  the  nature  of  the  error  assigned,  and  the 
interests  of  the  respective  parties  require.^® 

§  4.  Number  of. 

The  practice  of  needlessly  multiplying  assignments  of 
error  has  been  condemned.^^ 

§  5.  Effect  of  absence  of. 

If  there  are  no  assignments  of  error,  the  writ  should 
be  dismissed.^" 

§  6.  Effect  of  defects  in. 

The  effect  of  insufficient  assignments  of  error  is  to  limit 
the  scope  of  review.  Uncertainty  and  informality  in  the 
assignment  of  errors,  are  no  ground  for  quashing  the  as- 
signment, or  dismissing  the  writ.'^ 

§  7.  Amendment  of. 

The  supreme  court  will,  in  proper  cases,  upon  special 
motion,  allow  an  assignment  of  error  to  be  amended. ^^ 
The  entry  of  the  special  motion  for  leave  to  amend  should 
show  in  what  particular  an  amendment  is  desired,  and 

25  Genrow  v.  Modern  Woodmen,  Boydan  v.  Haberstumpf,  129  Mich. 
151  Mich.  250.  137. 

26  Browne  v.  Moore,  32  Mich.  254.  30  Hanselman  v.  Adrian,  139  Mich. 

27  Britton    v.    Michigan    Ry.    Co.,  546,  and  see  Error,  Writ  of. 

204  Mich.  217.  31  Teller  v.  Wetherell,  6  Mich.  46, 

28  Fisher  v.  Thirkell,  21  Mich.  1.  12  Parsons    v.    Copland,    5    Mich, 
28  Burt  V.   Long,   106  Mich.   210;       144, 


78  AssicxMKN  IS  OF  EIkror  §7 

a  copy  of  the  proposed  aiiieii(liiieiit,  with  notice  of  the 
motion,  should  be  served  on  the  opposite  party.^^  Where 
an  objection  to  an  assignment  of  error  is  purely  technical, 
and  it  is  evident  that  the  appellee  has  not  been  misled, 
an  amendment  to  the  assignment  should  be  permitted  to 
be  made  on  the  hearing.^* 

§  8.  Service  of. 

Copies  of  assignments  of  error  filed  in  the  supreme 
court  after  the  issuance  of  a  writ  of  error  are  required 
to  be  served  upon  the  appellee  within  the  time  limited 
for  filing  the  assignments,  but  when  the  assignments  of 
error  accompany  the  bill  of  exceptions  it  is  not  neces- 
sary to  file,  serve  or  give  notice  of  them,'^  They  come 
up  with  the  transcript  of  record  when  the  writ  of  error 
is  returned. 

Where  defendant  in  error  notices  the  cause  for  hear- 
ing, he  waives  any  right  to  complain  of  failure  to  serve 
on  him  a  copy  of  the  assignment  of  errors,^^  and  such 
failure  will  in  no  case  be  noticed  unless  the  omission  is 
complained  of.^' 

ASSOCIATIONS 

Cross-Refereiices:  Commencement  of  Actions;  Executions;  Man- 
damus. 

An  unincorporated  voluntar^^  association,  club  or  so- 
ciety, formed  in  Michigan,  and  composed  of  five  or  more 

Properly   refused   where   objection  33  Hubbard   v.   Garner,   115   Mich, 

purely    technical.      .Tohnson    v.    Pro-  406;    Parsons    v.    Copland,    5    Mich, 

vincial  Ins.  Co.,  12  Mich.  216.  144. 

Amendment  on  appellant's  motion  34  Trudo    v.    Anderson,    10    Mich, 

is  proper  so  as  to  include  a  general  357. 

assignment  that  the  findings  do  not  86  Sup.   Ct.  Eule   11. 

support   the   judgment,   but   in   such  36  Frost  v.  Lawler,  M  Mich.  235. 

case   the   usual    motion    fee    will    be  37  Perkins    v.    Nugent,    45    Mich, 

allowed  to  the  appellee.     Hubbard  v.  156. 
Garner,  115  Mich.  406. 


§  1  Assumpsit  79 

members,  having-  some  distinguishing  name,  may  sue  or 
be  sued  by  the  name  by  which  it  is  known,  but  the  statute 
expressly  provides  that  it  shall  not  deprive  a  litigant 
of  the  right  to  sue  all  the  members.^ 

ASSUMPSIT 

§    1.  Effect  of  Judicature  Act. 

§    2.  When  assumpsit  proper  at  common  law. 

§    3.  Special  and  general  assumpsit. 

§    4.  To  recover  penalty  or  forfeiture. 

§    5.  Waiving  a  tort  and  bringing  assumpsit. 

S    6.  In  case  of  conversion. 

§    7.  Fraud  or  deceit. 

§    8. Trespass  on  or  injury  to  land. 

§    9. Eight  as  optional. 

§  10.  Illustrative  instances  in  which  assumpsit  lies. 
§  11.  Assumpsit   against  corporation. 

Cross-Be ferences:  Actions;  Pleading  (When  common  courts  proper, 
mode  of  pleading,  etc.) ;  Joinder  and  Splitting  of  Causes  of  Action. 

§  1:  Effect  of  Judicature  Act. 

The  Judicature  Act  abolished  all  forms  of  actions  at 
law  except  (1)  assumpsit,  (2)  trespass  on  the  case,  (3) 
replevin,  and  (4)  ejectment,  certiorari,  mandamus  and 
quo  warranto,  and  expressly  provides  that  "in  all  cases 
where  the  actions  of  covenant  or  debt  would  be  other- 
wise maintainable,  the  action  of  assumpsit  shall  here- 
after be  brought,"  and  that  in  certain  cases  plaintiff  may 
elect  whether  to  bring  an  action  of  assumpsit  or  an 
action  on  the  case.^     It  follows  that  the  only  form  of 

1  Jud.    Act,    ch.    12,    §  12;    Comp.  suit  against  the  association  by  name 

Laws   1915,   §  12363.  and     its     members     jointly.       Light 

An  unincorporated  driving  associ-  Guard  Band  v.  First  Mich.  I.  I.,  134 

ation  may  be  sued   as  an  entity   or  Mich.  598. 

as    individuals.      Inglis    v.    Millers-  The  statute  is  a  constitutional  ex 

burg  Driving  Ass'n,  169  Mich.  311.  ercise   of   legislative    power.      U.    S. 

Fraternal   beneficiary   associations  Heater  Co.   v.   Molder's  Union,  129 

may  sue  and  be  sued.     Golden  Star  Mich.  355. 

Lodge,  No.  1  V.  Wattorson,  158  Mich.  1  Jud.   Act,  ch.   11,   §1.     See   also 

696.  Actions. 

This   section    does    not    prevent    a 


80  Assumpsit  §  1 

action  in  personal  actions  ex  contractu  is  assumpsit. 
Furthermore  assumpsit  lies  in  many  cases  where  a  tort 
is  waived.^ 

Even  at  common  law,  assumpsit  did  not  lie  unless 
there  was  a  contract,  express  or  implied,  between  the 
parties  to  the  action.'  This  is  the  rule  also  under  the 
Judicature  Act  unless  otherwise  specially  provided.  In 
case  of  express  contracts  there  is  but  one  form  of  per- 
sonal action — or,  better  stated,  all  forms  of  action  ex  con- 
tractu are  in  effect  abolished, — while  in  case  of  implied 
contracts  there  is  sometimes  an  election,  treating  the  im- 
plied contract  also  as  a  tort,  to  sue  ex  contractu  or  ex 
delicto,  i.  e.,  in  assumpsit  or  in  an  action  on  the  case. 

§  2.  When  assumpsit  proper  at  common  law. 

The  action  of  assumpsit,  so  called  from  the  Latin  word, 
'* assumpsit,"  which,  when  the  pleadings  were  in  that 
language,  was  always  inserted  in  the  declaration,  signi- 
fying that  the  defendant  undertook  the  obligations  set 
forth  in  the  other  words  of  that  pleading,  lies,  at  com- 
mon law,  for  the  recovery  of  damages  for  the  non-per- 
formance of  a  simple  contract,  or  in  other  words,  a  con- 
tract not  under  seal.*  It  was  distinguished,  on  the  one 
hand,  from  the  action  of  debt,  which  was  brought  for 
the  recovery,  not  of  damages,  but  of  a  debt,  as  such,  be 
the  same  the  creature  of  a  simple  contract,  a  sealed  con- 
tract or  a  judgment,  and  from  the  action  of  detinue, 
which  was  brought  for  the  recovery,  not  of  damages,  but 
of  a  personal  chattel  in  specie,  and,  from  the  action  of 
covenant,  which  lay  for  the  recovery  of  damages  for  the 
breach,  not  of  a  simple  contract,  but  of  a  covenant  or 
contract  under  seal. 

2  See  §§5-8,  post.  Archb.    N.    P.;    1    Brown,    Actions, 

8  Thornton  v.  Village  of  Sturgis,  318,  333 ;  State  v.  Harmon,  15  W. 
38  Mich.  639.  Va.  124. 

4Slade's    Case,    4    Coke  92b;    1 


§  3  Assumpsit  81 

§  3.  Special  and  general  assumpsit. 

The  contract  upon  which  assumpsit  may  be  brought 
may  be  either  express  or  implied,  the  difference  between 
which,  it  is  said,  consists  not  in  the  nature  of  the  under- 
taking itself,  but  in  the  mode  by  which  it  is  susceptible 
of  being  proved.®  A  contract  is  express  when  the  agree- 
ment is  formal  and  stated  either  verbally  or  in  writing, 
and  it  is  implied  when  the  agreement  is  matter  of  in- 
ference and  deduction.^  An  express  contract  exists  where 
the  terms  of  the  agreement  are  declared  by  the  parties 
at  the  time  of  the  making,  as,  to  pay  a  certain  price  for 
certain  goods.  An  implied  contract  is  such  as  reason  and 
justice  dictate,  and  which,  therefore,  the  law  presumes 
from  the  circumstances  of  the  case,  as  to  pay  the  worth 
of  services  requested  of  another,  or,  to  pay  the  real  value 
of  goods  delivered  without  agreement  as  to  price.  A 
species  of  implied  contract,  annexed  to  all  other  con- 
tracts, conditions  and  covenants,  is  that,  if  one  party 
fails  in  his  part  of  the  agreement,  he  will  pay  the  other 
party  the  damages  thereby  sustained.''' 

When  an  action  of  assumpsit  is  brought  upon  a  con- 
tract which  is  express,  or  '* special,"  as  it  is  also  char- 
acterized, such  action  is  designated  as  ''special  assump- 
sit." The  words  "special  assumpsit"  are  often  applied 
also  to  the  special  or  express  agreement,  as  well  as  to 
the  action  brought  upon  it.  In  cases  of  this  kind,  the 
declaration  should  allege  the  contract  according  to  its 
terms.  When  the  action  is  brought  upon  an  implied  con- 
tract, it  is  gaid  to  be  ''general  assumpsit."  In  this  case, 
a  general  statement  in  the  declaration,  in  the  form  of  one 
or  more  of  the  so-called  common  counts,  suffices.^ 

&  Woods  V.  Ayres,  39  Mich.  345.  Law  Diet.,  tit.  "Contracts";  Hert- 

6  And.     Law     Diet.,     tit.     "Gon-  zog    v.    Hertzog,    29    Pa.    St.    465; 

tracts";  Hertzog  v.  Hertzog,  29  Pa.  Woods  v.  Ayres,  39  Mich.  345. 

St.  465.  8  Common     counts      are      general 

f  2    Oooley  's    Bl.    Comm.    443 ;    3  forms  of  pecuniary  demand,  founded 

Cooley's  Bl.  Comm.  158-266;  And.  on  promises,  express  or  implied,  to 
1  Abbott— 6 


82  Assumpsit  §  3 

But  while  an  express  contract  is  still  open  and  unre- 
scinded,  there  can  be  no  implied  contract  covering  the 
same  subject-matter.® 

§  4.  To  recover  penalty  or  forfeiture. 

By  statute,  in  cases  not  otherwise  specially  provided 
by  law,  where  a  pecuniary  penalty  or  forfeiture  is  in- 
cun-ed  by  any  person  and  the  act  or  omission  for  which 
it  is  imposed  is  not  also  a  misdemeanor,  such  penalty  or 
forfeiture  may  be  recovered  in  an  action  of  assumpsit.^** 

§  5.  Waiving  a  tort  and  bringing  assumpsit. 

At  common  law  a  party  injured  by  the  tort  of  another 
could  waive  the  tort  and  sue  in  assumpsit  only  in  case 
the  tort  arose  out  of  contract  relations  between  the  par- 
ties or  the  tort  consisted  of  a  conversion  of  plaintiff's 
property  into  money  or  money's  worth. ^^  It  follows 
that  if  a  husband  sues  to  recover  money  paid  out  for 
medical  attendance  on  his  wife  as  a  result  of  an  injury 
while  she  was  a  passenger  on  a  street  railway,  the  tort 
cannot  be  waived  since  there  were  no  contractual  rela- 
tions between  the  husband  and  the  street  car  company.^^ 

pay  money  in  consideration  of  a  pre-  Shepard  &  Co.  v.  Crandall,  77  Mich, 

ceding  or  existing  debt,  and  one  of  401;   Hallwood  Cash  Eegister  Co.  v. 

their  important  uses  is  to  sustain  the  Millard,  127   Mich.   316;   D.  M.   Os- 

plaintiff  on  the  trial,  if  he  fail  to  born    &    Co.    v.    Wigent,    127    Mich. 

prove  his  ease  as  staled  in  the  spe-  624;   John  D.  Gruber  Co.  v.  Smith, 

cial   counts.     Archb.    PI.    157,    162a.  195  Mich.  336. 

See  also  Pleading.                             •  lOJud.   Act,   ch.    11,    §1,   ch.    35, 

9  Galloway    v.    Holmes,    1    Doug.  5  1;    Comp.    Laws     1915,    §§12350, 

330;     Wilson    v.    Hagar,    26    Mich.  13393. 

452;   Hunt  v.  Sackett,  31  Mich.  18;  Assumpsit    by    Attorney    General 

Keystone  Lumber  &  Salt  Mfg.   Co.  will  be  to  recover  expense  of  replac- 

V.    Dole,   43    Mieh.    370;    Sohurr    v.  ing  road  markers,  sig^s,  etc.     Pub. 

Savigny,  85  Mich.  144;  Boughton  v.  Acts  1919,  No.  10. 

Boughton's    Estate,    111    Mich.    26;  11  Plefka  v.   Detroit    United   Ry., 

Butterfield    v.    Seligman,    17    Mich.  147  Mich.  641. 

95;    Hall  v.  Duplex  Power  Car  Co.,  12  Plefka    v.    Detroit    United   Ry., 

168  Mich.   640;   Dowagiac  Mfg.   Co.  147  Mich.  641. 
V.    Corbit,    127   Mich.   473;    Nichols, 


>$  6  Assumpsit  83 

Of  course  there  is  no  waiver  of  a  tort  unless  knowledge 
of  the  cause  of  action  waived  existed  at  the  time  of  the 
alleged  waiver.^' 

§  6. In  case  of  conversion. 

If  one  has  taken  possession  of  property  and  sold  or 
disposed  of  it  and  received  money  or  money's  worth 
therefor,  the  owner  may  affirm  the  sale  as  made  on  his 
behalf  and  demand  the  benefit  of  the  transaction  in  this 
forni  of  action."  And,  by  statute  in  this  state,  either 
assumpsit  or  case  may  be  brought  in  cases  of  conver- 
sion of  personal  property  into  money.^^  The  owner  is 
permitted  to  treat  that  which  is  purely  a  tort  as  having 
created  a  contract  between  himself  and  the  wrongdoer, 
and,  waiving  his  right  of  action  for  the  tort,  to  pursue 
his  remedy  for  the  breach  of  the  supposed  contract.^^ 
But  the  general  rule  is  that,  before  a  party  can  waive  a 
tort  for  the  conversion  of  personal  property  and  bring 
assumpsit,  the  property  in  the  hands  of  the  tort-feasor 
must  have  been  sold  and  converted  into  money,  upon  the 
theory  that  the  money  was  received  for  the  plaintiff's 
use."  There  is,  however,  another  class  of  cases  in  which 
the  tort  may  be  waived  and  assumpsit  brought,  even 

13  Hogue   V.   Wells,   180   Mich.   19,  tion  for  which  he  may  at  his  option 

23.  either  bring   trover  or,   waiving   the 

1*  Watson     V.     Stever,     25     Mich.  tort,   sue   in   assumpsit,   his  election 

386;   Tolan  v.  Hodgeboom,  38  Mich.  to  pursue  one  form  of  remedy  binds 

624;  Ward  v.  Warner,  8  Mich.  508;  him  to  the  form  elected,  so  that  he 

Nelson  v.  Kilbride,  113  Mich.   637;  cannot   thereafter   pursue  the  other, 

Buckeye     Tp.    v.     Olark,    90     Mich.  even   though  he   discontinue  the  ac- 

432;  Bowen  v.  School  District  No.  9,  tion  first  brought.     Thomas  v.  Watt, 

36   Mich.    149;    St.   John   v.   Antrim  104  Mich.  201. 

Iron  Co.,  122  Mich.  68;  Coe  v.  Wag-  17  Tuttle    v.    Campbell,    74    Mich. 

ner,  42  Mich.  49;  Farwell  v.  Myers,  652;   Tolan  v.  Hodgeboom,  38  Mich. 

64  Mich.  234.  624;  Watson  v.  Stever,  25  Mich.  386; 

16Jud.  Act,  ch.  11,  §1;  Comp.  Coe  v.  Wagner,  42  Mich.  49;  Lock- 
Laws  1915,  §12350;  Loomis  v.  wood  v.  Thunder  Bay  R.  B.  Co.,  42 
O'Neal,  73  Mich.  582.  Mich.  536;   Williams  v.  Rogers,  110 

leCooley,  Torts,  91.  Mieh.  418. 

When  a  party  has  a  cause  of  ac- 


84  Assumpsit  §  6 

though  there  has  been  no  sale  of  the  property.  This  is 
where  there  are  contractual  relations  between  the  par- 
ties from  which  arises,  either  by  the  express  terms  of 
the  contract  or  by  implication  of  law,  a  duty,  the  breach 
of  which  itself  constitutes  a  tort.  Cases  involving  the 
relations  of  co-tenants,  principal  and  agent,  attorney  and 
client,  bailor  and  bailee,  are  the  more  common  instances 
of  this  kind." 

But  where  the  act  is  a  naked  trespass,  unaccompanied 
either  by  a  sale  of  the  property  or  by  relations  of  con- 
tractual origin,  it  is  well  settled  by  the  great  preponder- 
ance of  authority,  as  well  as  upon  principle,  that  as- 
sumpsit cannot  be  maintained  in  the  absence  of  statu- 
tory provision. ^^ 

To  be  entitled  to  waive  a  conversion  as  a  tort  and  sue 
in  assumpsit,  the  plaintiff  must  be  in  position  to  claim 
the  property  as  owner.  From  this  it  follows  that,  inas- 
much as  a  mortgagee  of  chattels  in  this  state  is  not  re- 
garded as  the  owner  thereof,  he  cannot,  in  case  of  their 
conversion,  recover  in  assumpsit  either  for  their  value 
or  for  the  amount  for  which  they  were  sold.^" 

§  7.  Fraud  or  deceit. 

It  has  been  held  that  a  party,  upon  whom  a  fraud  has 
been  perpetrated  in  making  a  contract,  cannot  turn  the 

ISHutchins  v.  Vinkemulder,  187  erty  lawfully  but  withholds  it  un- 
Mich.  676;  Piquet  v.  Allison,  12  lawfully,  the  tort  may  be  waived  and 
Mich.  328;  Watson  v.  Stever,  assumpsit  maintained.  McDonald  ▼. 
25  Mich.  386;  McLaughlin  v.  Salley,  Young,  198  Mich.  620. 
46  Mich.  219 ;  McDonald  v.  McDon-  l»  Cooley,  Torts,  95 ;  Watson  v. 
aid,  67  Mich.  122;  Coe  v.  Wagner,  Stever,  25  Mich.  386;  Dwight  v. 
42  Mich.  49;  Tuttle  v.  Campbell,  74  Cutler,  3  Mich.  566;  Tuttle  v.  Camp- 
Mich.  652;  Loomis  v.  O'Neal,  73  bell,  74  Mich.  652;  Hogsett  v.  Ellis, 
Mich.  582;  Aldine  Mfg.  Co.  v.  Bar-  17  Mich.  351;  Ward  v.  Warner,  8 
nard,  84  Mich.  632;  Williams  v,  Mich.  508;  Smith  v.  Haight,  188 
Rogers,  110  Mich.  418;  St.  John  Mich.  512 ;  Henderson  v.  City  of  De- 
v.  Antrim  Iron  Co.,  122  Mich.  68;  troit,  61  Mich.  378. 
Brown  v.  Foster,  137  Mich.  35;  New-  20  Randall  v.  Higbee,  37  Mich, 
man  v.  Olney,  118  Mich,  545.  40;   Carpenter  v.  Graham,  42  Mich. 

Where  one  obtains  personal  prop-  191;  Warner  v.  Beebe,  47  Mich.  435. 


§  8  Assumpsit  85 

contract  into  a  tort  and  then,  waiving  the  tort,  shift  it 
into  the  form  of  a  new  contract  different  from  the  first 
and  maintain  assumpsit,^^  although  he  might  retain  the 
benefits  of  the  first  contract  and  sue  for  the  fraud ;  ^^  and, 
also,  that  one  exchanging  property  with  another  cannot 
waive  the  tort,  consisting  in  fraudulent  representations 
as  to  the  property  which  he  received,  and  maintain  as- 
sumpsit for  its  value.^^ 

But  it  is  now  provided  by  statute  that,  in  all  cases 
where  an  action  on  the  case  for  fraud  or  deceit  may  by 
law  be  brought,  an  action  of  assumpsit  may  be  brought 
and,  in  all  such  cases,  a  promise  will  be  implied  by  law 
to  pay  all  just  damages  sustained  by  the  plaintiff,  and 
may  be  so  declared  upon.^*  Upon  the  death  of  the  per- 
son injured,  the  cause  of  action  survives  to  his  personal 
representatives.*^^ 

§  8.  Trespass  on  or  injury  to  land. 

By  statute,  plaintiff  has  the  option  ,to  bring  assumpsit 
or  case  where  a  trespass  on  land  is  complained  of.^^  So, 
by  statute,  it  is  provided  that,  in  all  cases  where  a  party 
has  a  right  of  action  for  the  taking  of  timber  or  other 
trespass  on  lands  or  for  any  injury  to  lands,  where  the 
tort  is  waived  and  an  action  of  assumpsit  brought  there- 
for, the  plaintiff  may  commence  his  suit  by  attachment 
against  the  property  of  the  defendant,  as  in  other  cases ;  ^' 
and  his  affidavit  for  such  attachment  should  state  the 
amount  due  him,  as  near  as  may  be,  and  the  fact  that  the 

21  Emerson  v.  Detroit  S,  &  S.  Co.,  don,  128  Mioh.  364;  Mahder  v.  Wax, 

100  Mich.  127.  192  Mich.  479. 

22Warne8  v.  Brubaker,  107  Mich.  26  Jud.   Act,  ch.   12,   §32;    Comp. 

440.  Laws   1915,   §  12383. 

23  Reed  V.  Ismond,  110  Mich.  16;  26  Jud.  Act,  ch.  11,  §1;  Comp. 
Bedier  v.  Fuller,  106  Mich.  342.  Laws  1915,  §  12350. 

24  Jud.  Act,  eh.  11,  §1;  Comp.  27  Jud.  Act,  eh.  26,  §44;  Comp. 
Laws  1915,  §12350;  Bedier  v.  Ful-  Laws  1915,  §13071;  St.  John  v. 
ler,  116  Mich.  126;   Hallett  v.  Gor-  Antrim  Iron  Co.,  122  Mich.  68. 


86  Assumpsit  §  8 

damages  are  unliquidated  will  not  prevent  the  bringing 
and  maintaining  of  sucli  writ.^^ 

This  statute,  as  originally  enacted,  was  chiefly  intended 
to  remedy  the  difficulty  arising  under  the  rule  in  Wat- 
son V.  Stever,^^  w'hich  denied  a  right  of  action  in  as- 
sumpsit for  property  taken  by  trespass,  but  not  con- 
verted into  money,  of  which,  if  sold,  the  original  owner 
might,  if  he  chose,  treat  the  proceeds  as  money  had  and 
received  to  his  use,  inasmuch  as  it  was  the  price  received 
for  his  property  on  an  unauthorized  sale  which  he  was 
allowed  to  affirm.  The  statute,  while  very  broad  in  its 
language,  does  not  purport  to  make  contracts  in  fact, 
nor  to  allow  anything  to  be  sued  for  except  as  damages 
sustained  by  the  trespass.  It  simply  operates  to  provide 
that,  w^ien  a  trespass  has  been  committed,  whereby  dam- 
ages accrue,  the  duty  to  pay  those  damages  may  be 
treated  as  a  debt  or  implied  agreement.  To  bring  any 
case  within  the  statute,  the  damages  must  be  shown  in 
the  declaration  to  have  accrued  out  of  a  trespass.  The 
statute  gives  no  warrant  for  making  any  suggestion 
which  is  false  in  fact  or  for  turning  an  adverse  holding 
into  a  contract  of  tenancy.^" 

§  9.  Right  as  optional. 

In  those  cases,  however,  in  which  a  party  may  waive 
the  tort  and  bring  his  action  of  assumpsit,  he  has  an 
option  whether  he  will  do  so  or  not.  He  is  not  compella- 
ble to  sue  in  assumpsit. ^^  However,  the  election  is  final. '^ 
There  can  be  no  partial  waiver  as  to  one  part  of  a  tort.'' 

28  Jud.  Act,  ch.  26,  §44;  Comp.  as  money  had  and  received,  and  re- 
Laws  1915,  §  13071.  covery  may  be  had  under  a  count  for 

29  Watson  V.  Stever,  25  Mich.  386.       money  had  and  received.     Nelson  v. 
SOLockwood   V.    Thunder    Bay    R.       Kilbride,  113  Mich.   637. 

B.  Co.,  42  Mieh.  536;  Nield  v.  Bur-  31  Wilson    v.    Hoffman,    93    Mich. 

ton,  49  Mich.  53.    See  also  Weidman  72. 

V.  Willson,  153  Mich.  82.  32  Thompson  v.  Howard,  31  Mich. 

Where  the  defendant  has  sold  the  309. 

property,  the  proceeds  are  regarded  33  Bedier  v.  Fuller,  106  Mich.  342. 


§  10  Assumpsit-  87 

§  10.  Illustrative  instances  in  which  assumpsit  lies. 

As  illustrative  of  the  various  cases  to  which  the  action 
of  assumpsit  is  applicable,  numerous  examples  might 
be  given.  Thus,  it  lies  to  recover  money  lent  by  the  plain- 
tiff to  the  defendant,  or  paid  by  the  plaintiff  for  the  de- 
fendant at  his  request,  or  had  and  received  by  the  de- 
fendant for  the  use  of  the  plaintiff.^*  So  it  is  the  proper 
form  of  action  to  recover  back  moneys  that  have  been 
received  by  a  person  without  consideration  and  against 
law  and  equity,^^  and  to  recover  money  paid  by  mis- 
take.^^  But  money  paid  in  the  reasonable  belief  that  it 
is  due,  and  after  investigation  or  the  opportunity  there- 
for, and  without  fraud  on  the  part  of  the  recipient,  can- 
not be  recovered  back  as  paid  under  a  misapprehen- 
sion." Assumpsit  also  lies  for  the  value  of  goods,  which 
the  defendant,  by  fraud,  induced  the  plaintiff  to  sell  to 
an  insolvent  person  and  afterwards  obtained  for  his  own 
benefit.^^  It  lies  to  recover  money  due  on  an  account 
stated,^®  also  for  services  and  for  work  of  different  de- 

84  Atkinson  v.  Scott,  36  Mich.  18;  Coon   v.   Anderson,    101   Mich.    295; 

Twitchell   v.   Drury,    25   Mich.   393 ;  Taylor  v.  Belton,  188  Mich.  302. 

Catlin    V.    Birchard,    13    Mich.    110;  36  Little   v.   Derby,   7   Mich.   325; 

Beardslee   v.   Horton,   3   Mich.   560;  Byrnes    v.    Martin,    67    Mich.    399; 

Walker    v.    Conant,    65    Mich.    194;  Lane  v.  Pere  Marquette  Boom   Co., 

Moore     v.     Mandlebanm,     8     Mich.  62  Mich.  63;  McKay  v.  Coleman,  85 

433;  Hall  v.  Kimmer,  61  Mich.  269;  Mich.    60;     McGoren    v.    Avery,    37 

Willson  V.  Owen,  30  Mich.  474;  Bar-  Mich.  120;  Kennedy  v.  Murphy  Iron 

nard  v.  Colwell,  39  Mich..  215;  Mar-  Works,  91  Mich.  500;  Ellis  v.  State 

tin  V.  Sheridan,  46  Mieh.  93;  Thayer  Auditors,  107  Mich.  528;  Pingree  v. 

V.   City  of  Grand   Rapids,   82  Mich.  Mutual  Gas  Co.,  107  Mich.  156. 

298;    Minor  Lumber  Co.   v.  City   of  37  Wheeler  v.  Hathaway,  58  Mich. 

Alpena,    97    Mich.    499;    Havens    v.  77;  Mc Arthur  v.  Luce,  43  Mich.  435. 

Church,  104  Mich.  135;   Liesemer  v.  3811111  v.   Perrott,   3    Taunt.   274; 

Burg,    106    Mich.    124;     Tanner    v.  1    Chit.  PL   112. 

Page,  106  Mich.  155.  39  Watkins  v.  Ford,  69  Mich.  357 ; 

86  Friend  v.  Dunks,  37  Mich.  25;  Albrecht    v.    Gies,    33    Mich.    389; 

Murphy  v.  McGraw,  74  Mich.  318;  Stevens    v.    Tuller,    4    Mich.    387; 

Fitzpatrick    v.    HofiFman,    104    Mich.  Gooding  v.  Hingston,  20  Mich.  439; 

228;  Hidey  v.  Swan,  111  Mich.  161;  Fellows  v.   Thrall,  85  Mich.   161. 
Cornell    v.    Crane,    113    Mich.    460; 


Assumpsit 


§10 


scriptions,*"  for  the  sale,  use  or  hire  of  goods,*^  or  of 
lancls,*^  and  upon  bills  of  exchange,  whether  foreign  or  in- 
land, checks,  promissory  notes  and  policies  of  insurance 
on  ships  or  on  lives  or  against  fire.  It  lies  on  promises  to 
pay  money  in  consideration  of  forbearance  to  sue  the  de- 
fendant or  a  third  person,  or  in  consideration  of  services 
or  work  done,  or  goods  sold  to  the  defendant  or  a  third 
person  at  the  defendant's  request.  It  lies  upon  contracts 
to  guarantee,  to  indemnify,  to  serve  and  employ,  and 
against  attorneys,  wharfingers,  surgeons,  innkeepers, 
carriers  and  other  bailees  for  neglect  or  other  breach  of 
duty.  It  is  the  appropriate  action  upon  a  breach  oY 
promise  to  marry.  It  lies  against  a  vendor  for  not  de- 
livering goods  bought,  and  against  a  vendee  for  not  ac- 
cepting goods  sold  or  for  not  delivering  a  bill  of  exchange 
in  payment  for  the  same,  and  by  or  against  vendors  and 
purchasers  for  not  completing  a  contract  of  sale.     So, 


Where  an  account  has  been  stated, 
it  is  not  necessary  that  the  ante- 
cedent debt  or  demand  be  proved. 
Armitage  v.  Saunders,  94  Mieh.  482 ; 
Stevens  v.  Tuller,  4  Mich.  387;  Al- 
brecht  v.  Gies,  33  Mich.  389. 

An  account  is  stated  whenever,  as 
the  result  of  an  accounting  between 
the  parties,  in  respect  of  debts  or 
accounts,  a  balance  has  been  struck. 
Gooding  v.  Kingston,  20  Mich.  439; 
Watkins  v.  Ford,  69  Mich.  357 ;  Fel- 
lows v.  Thrall,  85  Mich.  161;  Thom- 
asma  v.  Carpenter,  175  Mich.  428; 
Isaacs  V.  Wishnick,  136  Minn.  317. 

It  need  not  be  in  writing.  Wat- 
kins  V.  Ford,  69  Mieh.  357;  Sperry 
V.  Moore's  Estate,  42  Mich.  353. 

It  seems  that  any  admission  by 
one  party  of  a  balance  or  an  ac- 
knowledgment that  a  sum  of  money 
is  due  another  supports  a  count  upon 
an  account  stated.  Gooding  v. 
Kingston,  20  Mich.  439. 


But  the  mere  rendering  of  an 
account  is  not  an  account  stated; 
it  must  be  assented  to  in  some  way. 
White  V.  Campbell,  25  Mich.  463; 
Payne  v.  Walker,  26  Mich.  60;  Eay- 
mond  V.  Leavitt,  46  Mich.  447;  Kus- 
terer  Brewing  Co.  v.  Frier,  99  Mich. 
190;  Pabst  Brewing  Co.  v.  Lueders, 
107  Mich.  41;  Raub  v.  Nisbett,  118 
Mich.  248;  Peter  v.  Thickson,  51 
Mich.   589. 

40  1  Chit.  PI.  113. 

41  Scotten  v.  Sutter,  37  Mich.  526; 
Beebe  v.  Warner,  51  Mich.  134; 
Ginsburg  v.  Cutler  &  Savidge  Lum- 
ber Co.,  85  Mich.  439. 

42Dwight  V.  Cutler,  3  Mich.  566; 
Dalton  V.  Laudahn,  30  Mich.  349; 
Hogsett  V.  Ellis,  17  Mich.  351; 
Conkling  v.  Tuttle,  52  Mich.  630; 
Reed  v.  Reed,  108  Mich.  498; 
Beecher  v.  Duffield,  97  Mich.  423. 


Attachment  89 

where  there  has  been  an  express  agreement  between 
landlord  and  tenant  or  where  the  law  implies  a  contract 
on  the  part  of  the  latter  to  manage  the  farm  in  a  husband- 
like manner,  this  action  may  be  sustained  for  the  breach 
of  such  contract,  although,  where  the  tenant  has  been 
guilty  of  voluntary  waste,  it  is  usual  to  declare  in  case, 
unless  there  be  also  a  money  demand,  which  might  be 
included  in  a  declaration  in  assumpsit.*^ 

§  11.  Assumpsit  against  corporation. 

It  was  formerly  held  that  assumpsit  could  not,  in  gen- 
eral, be  supported  against  a  corporation,  on  the  prin- 
ciple that  a  corporation  could  not  contract  by  parol.  But 
it  is  now  well  settled  that  a  corporation  may  be  sued  in 
assumpsit  as  well  as  a  natural  person. 

ATTACHMENT 

I.  General  Considerations 

§  1.  In  general. 

§  2.  Effect  on  subsequent  procedure  of  commeneing  action  by  attachment. 

§  3.  Nature  of  proceeding  and  construction  of  statutes. 

§  4.  Against  whom  allowable. 

§  5.  Against  part  of  several  defendants. 

§  6.  County  in  which  suit  to  be  brought. 

S  7.  Attachment   after    commencement    of    action. 

II.  Actions  Which  May  Be  Commenced  by  Attachment 

§    8.  Actions  ex  contractu. 

§    9.  Where  debt  not  due. 

§  10.  Where  tort  is  waivedr 

§  11.  Actions  ex  delicto. 


§  12.  Enumeration. 


III.  Grounds 


IV.  Affidavits 


13.  Necessity  for  and  contents  in  general. 

14.  Statements  on  information  and  belief. 

15.  Averment  of  indebtedness. 

48  1  Chit.  PI.  113,  114. 


90  Attachment 

S  16.  Allegation  of  grounds  for  attachment In  general. 

S  17.  Allegation  that  defendant  has  absconded,  etc, 

S  18.  Allegation  that  defendant  has  assigned  his  property,  etc. 

§  19.  Allegation  of  removal,  etc.,  of  property. 

§  20.  Allegation  that  debt  was  fraudulently  contracted. 

§  21.  Allegation  of  non-residence  of  defendant. 

§  22.  Allegation  that  defendant  is  a  foreign  corporation. 

§  23.  Statement    where    attachment   merely    because    defendant    a    domestic 

corporation. 
S  24.  Statement  as  to  parties. 

8  25.  Title.  ' 

§  26.  Time  for  making. 
§  27.  Who  may  make. 
§  28.  Amendment  of  affidavit. 

V.  Writ,   Skrvice,  Levy,   Lien   and  Sale 

§  29.  Issuance  and  when  returnable. 
§  30.  Form  and  contents. 
§  31.  Indorsement  as  security  for  costs. 
§  32.  Execution  of  writ. 

S  33.  Ajipraisal. 

§  34.  Inventory. 

§  35.  Effect  of  failure  to  serve  "certified"  copy  of  writ  and  inventory. 

§  36.  Service  of  writ  where  defendant  not  found  in  county  where  prop- 
erty  seized. 

§  37.  — Where  property  may  be  seized. 

§  38.  Mode  of  levying  on  real  estate  and  effect  thereof. 

§  39.  Mode  of  levying  on  personal  projierty  and  effect  thereof. 

§  40.  Property  subject  to  levy. 

§  41.  Priority  of  and  between  attachments. 

§  42.  Bight  of  officer  to  indemnity. 

§  43.  Sale  of  perishable  property  attached. 

§  44.  Subsequent  proceedings  where  no  personal  service  of  writ. 

§  45.  Beturn  of  writ. 

§  46.  Proceedings  after  return  where  writ  personally  served. 

I  47.  Intervention  by  claimant  of  property  attached. 

§  48.  Bond  for  release  of  property. 

§  49.  Appearance  of  defendant  before  judgment  where  not  served  with  writ. 

§  50.  How  long  j)roperty  bound  by  levy. 

VI.  Dissolution  or  Quashing 

§  51.  Nature  and  reason  of  proceeding. 
§  52.  By  and  to  whom  application  made. 
§  53.  Bemedy  for  unjust  attachment. 
§  54.  Who  may  apply  for. 
§  55.  When  application  may  be  made. 


§  1  Attachment  91 

§  56.  Requisites  of  application. 
§  57.  The  citation. 

§  58.  Service. 

§  59.  Hearing. 

§  60.  Issue. 

§  61.  Burden  of  proof. 

§  62.  Eight   to  begin   evidence   and   open   argument. 

§  63.  Evidence  and   determination. 

§  64.  Compelling  attendance   of  witnesses. 

§  65.  Costs. 

§  66.  Effect  of  dissolution. 

§  67.  Eestoration  of  property. 

§  68.  Appeal  from  order  of  commissioners. 

§  69.  Effect  of  judgment  in  suit. 

§  70.  Eeview  by  certiorari. 

§  71.  Eeview  by  writ  of  error  or  mandamus. 

VII.  Judgment  and  Execution 
§  72.  Statutory  provisions. 

VIII.  Wrongful  Attachment 
§  73.  Liability  for  damages. 

Cross-References:  Executions;  Costs;  Contempt;  Replevin;  Manda- 
mus; Habeas  Corpus;  Certiorari;  Commencement  of  Actions. 

I.  General  Considerations 

§  1.  In  general. 

Chapter  26  of  the  Judicature  Act  rehites  to  '' Proceed- 
ings by  Attachment  in  Courts  of  Record."  It  changes 
the  statutes  as  they  existed  before  1915  only  in  a  few 
respects.  It  is  comprehensive  in  its  scope  and  covers, 
it  would  seem,  nearly  every  question  which  may  arise  in 
the  course  of  such  proceedings.  Special  attention  should 
be  called,  however,  to  a  few  matters  contained  therein. 
For  instance,  nearly  all  the  provisions  relate  to  an  at- 
tachment to  commence  the  action,  based  on  a  contract, 
where  the  debt  sued  on  is  due.  Certain  special  provi- 
sions are  embraced  therein,  however,  covering  (1)  at- 
tachments where  tlie  debt  is  not  due,^  (2)   attachments 

1  See  §  9,  post. 


92  Attachment  §  1 

where  the  cause  of  action  is  based  upon  a  tort,^  and  (3) 
attachments  where  the  writ  is  sought  after  the  action 
has  been  commenced  by  summons  or  declaration.*  Special 
provisions  also  exist  as  to  attachment  in  actions  for  tres- 
pass on  state  lands,*  and  authorizing  actions  against 
itinerant  venders  by  attachment.^  Attachment  in  actions 
to  enforce  liens  on  forest  products  is  also  expressly  pro- 
vided for  by  a  separate  statute.® 

Often  the  primary  purpose  in  resorting  to  attachment 
is  to  select  the  forum.''^ 

§  2.  Effect  on  subsequent  procedure  of  conunencing  action 
by  attachment. 

The  statute  provides  that  ''the  practice  in  actions 
commenced  by  attachment  shall  be  the  same  in  all  re- 
spects as  in  personal  actions  commenced  by  summons, 
as  near  as  may  be,  except  as  otherwise  provided  by 
law."« 

The  plaintiff  must  file  his  declaration  in  said  attach- 
ment in  the  same  manner  and  within  the  same  time  and 
serve  the  same  as  is  provided  by  the  rules  and  practice 
governing  proceedings  in  circuit  court  in  other  cases  in 
assumpsit,®  i.  e.,  within  fifteen  days  after  the  issue  of  the 
writ.  Where  the  declaration  is  not  filed  within  the  fif- 
teen days  after  the  issue  of  the  writ,  the  delay  is  a  mere 
irregularity  cured  by  filing  the  declaration,  where  no 
appearance  or  default  had  been  entered.^" 

2  See  §11,  post.  ■'See    Feldman    v.    Preston,    194 

«  See  §  7,  post.  Mich.  352,  358. 

4Jud.    Act,    ch.    26,    §45;    Comp.  » Jud.    Act,    ch.    26,    §32;    Comp. 

Laws  1915,  §  13072.  Laws  1915,   §  13059. 

5Jud.    Act,   eh.    26,    §46;    Comp.  » Jud.    Act,    eh.    26,    §23;    Comp. 

Laws  1915,  §  13073.  Laws  1915,  §  13050.     2.-?*  f?  t  ^ 

6  Comp.     Laws      1915,      §§  14847-  10  Smith  v.  Eunnels,  94  Mich.  617. 

14850,    construed    as    to    service    of  To  same  effect,  Goodspeed  v.  Smith, 

writ  in  Craig  v.  Brown,  169  Mich.  161   Mich.  688. 
161;  Pepin  v.  Nault,  149  Mich.  180; 
White  V.  Prior,   88  Mich.   647. 


Attachment 


93 


§  3.  Nature  of  proceeding'  and  construction  of  statutes. 

The  proceeding  by  writ  of  attachment  is  a  purely  stat- 
utory remedy,  unknown  to  the  common  law,"  and  has 
always  been  considered  and  treated  in  this  state  as  a 
special  proceeding.^^  In  it,  the  court  exercises  an  ex- 
traordinary jurisdiction  under  a  special  statute  which 
prescribes  its  course,  and  that  course  must  be  strictly 
pursued.  Proceedings  by  attachment  do  not  derive  their 
efficacy  from  the  general  powers  of  the  court.  The  court 
can  act  only  under  the  special  limited  powers  granted 
by  the  statute  and  according  to  its  form  of  procedure.^* 
But  if  there  be  a  literal  compliance  with  its  prerequisites, 
this  is  sufficient  to  confer  jurisdiction.^* 

The  remedy  by  attachment  is  highly  artificial,  and,  in 
this  state,  is  considered  as  special  and  extraordinary." 
The  statutory  provisions  relating  to  it  have  invariably 
been  subjected  to  strict  construction,  and  the  rule  is 
fairly  established  that,  unless  the  case  is  plainly  within 
the  terms  expressed,  it  cannot  be  considered  as  em- 
braced." 


11  Welles  V.  City  of  Detroit,  2 
Doug.  77;  Knaek  v.  Berlin,  150 
Mieh.  550. 

12  Buckley  v.  Lowry,  2  Mich.  418. 

13  Buckley  v.  Lowry,  2  Mich.  418 
Brigham   v.   Eglinton,  7  Mich.  291 
King  V.   Ilarrington,  14  Mich.  532 
Cross    V.    McMaken,    17    Mich.    511 
Barker  v.  Thorn,  20  Mich.  264;  Ma 
cumber  v.  Beam,  22  Mich.  395;  Mil 
lar  V.  Babcoek,  29  Mich.  526 ;  Adams 
V.  Abram,  38  Mich.  302;  Mathews  v. 
Densmore,  43  Mieh.  461;   Van  Nor- 
man   V.   Jackson    Circuit   Judge,    45 
Mich.  204;  TJairbanks  v.  Bennett,  52 
Mich.    61;     Borland    v.    Kingsbury, 
65  Mich.  59;   Steero  v.  Vanderberg, 
67  Mich.  530;  Nugent  v.  Nugent,  70 
Mich.  52;  Estlow  v.  Hanna,  75  Mich. 
219;   Davison  v.  Davison,  99  Mich. 


625;  Gary  v.  Everett,  107  Mich.  654; 
Jaffray  v.  Jennings,  101  Mich.  515; 
De  Carie  v.  Marks,  171  Mich.  167. 

14Eoelofson  v.  Hatch,  3  Mich. 
277;  Drew  v.  Dequindre,  2  Doug. 
95. 

16  Van  Norman  v.  Jackson  Circuit 
Judge,  45  Mich.  204;  Feldman  v. 
Preston,  194  Mich.  352. 

16  Jaffray  v.  Jennings,  101  Mich. 
515;  Van  Norman  v.  Jackson  Cir- 
cuit Judge,  45  Mich.  204;  Mathews 
v.  Densmore,  43  Mich.  461 ;  Buck- 
ley V.  Lowry,  2  Mich.  418;  Thomp- 
son V.  Thomas,  11  Mich.  274;  King 
V.  Harrington,  14  Mich.  532;  Millar 
T.  Babcoek,  29  Mich.  526;  Johnson 
V.  Dclbridge,  35  Mich.  436;  Wool- 
kins  V.  Haid,  49  Mich.  299;  Rolfe 
V.  Dudley,  58  Mich.  208. 


94  Attachment  §  4 

§  4.  Ag-ainst  whom  allowable. 

Corporations,  both  domestic  and  foreign,  may  be  pro- 
ceeded against  by  attachment.^'  As  to  domestic  corpora- 
tions, excepting  railroad  companies  or  corporations 
whose  right  of  way  is  entirely  or  partly  within  the  state 
and  navigation  companies  or  corporations,  it  is  especial- 
ly provided  by  statute  that,  in  any  county  where  the 
plaintit¥  resides,  other  than  the  one  in  which  the  prin- 
cipal office  of  the  corporation  is  located,  a  writ  of  attach- 
ment may  be  the  first  process  against  the  corporation.^^ 

If  suit  is  brought  against  a  domestic  corporation  whose 
principal  office  is  located  in  a  different  county  from  the 
one  where  plaintiff  resides,  it  may  be  brought,  under  this 
statute,  in  the  latter  county  if  there  is  property  there 
which  may  be  attached.^^ 

§  5. Against  part  of  several  defendants. 

When  two  or  more  persons  are  jointly  indebted  as  joint 
obligors,  partners  or  otherwise,  an  affidavit  may  be  made 
so  as  to  bring  one  or  more  of  them  within  the  statute.  In 
such  case,  the  writ  of  attachment  may  issue  against  the 
property  and  effects  of  such  as  are  so  brought  within  the 
statute,  the  officer  being  also  directed  in  the  writ  to  sum- 
mon all  such  joint  debtors  as  may  be  named  in  the  affi- 
davit attached  thereto  to  answer  to  the  action  as  in  other 
cases  of  attachment.^"  When  the  plaintiff  is  able  to  make 
out  a  case  for  an  attachment  against  only  one  of  several 

17  Michigan  Dairy  Co.  v.  Runnels,  the  debtor 's  principal  office  is  lo- 
96  Mich.  109.  See  also  Showen  v.  eated.  Greaccn  v.  Buckley  &  Doug- 
.J.  L.  Owens  Co.,  158  Mich.  321.  las  Lumber  Co.,  167  Mich.  569.    See 

18  Jud.  Act,  ch.  26,  §  3 ;  Comp.  also  Michigan  Dairy  Co.  v.  Run- 
Laws  1915,  §  13030.    2.-^,  tn  ^'2>  nels,   96   Mich.    109. 

This  statute  authorizes  a  proceed-  19  Greacen  v.  Buckley  &  Douglas 

ing    in    attachment    against    a    do-  Lumber    Co.,    167    Mich.    569.      See 

mestic     corporation,     debtor,     when  alse  Venue. 

and    for    the   sole    reason    that    the  20  Jud.   Act,   ch.   26,   §33;    Comp. 

plaintiff,     creditor,     resides     in     a  Laws  1915,  §  13060. 
county    other    than    the    one    where 


§  6  Attachment  95 

debtors,  whether  they  be  partners  or  not,  he  must  not 
allege  a  joint  wrong  by  them  all,  but  must  set  forth  the 
facts  in  his  afifidavit.^^  Partnership  property  cannot  be 
attached  unless  there  is  ground  for  attachment  as  against 
all  of  the  partners.^^  Nor  should  the  individual  property 
of  a  co-partner  be  attached  for  a  debt  of  the  co-partner- 
ship, if  no  ground  for  attachment  exists  as  against  him.^' 

§  6.  County  in  which  suit  to  be  brought. 

Any  creditor  may  proceed  by  attachment  against  his 
debtor  in  the  circuit  court  of  the  county  in  which  the  cred- 
itor or  the  debtor  (or,  in  case  of  joint  debtors,  either  of 
them)  resides,  if  the  debtor  has  property  subject  to  at- 
tachment in  such  county;  and  in  case  the  debtor  has  no 
property  in  such  county  or  is  a  non-resident  of  this  state, 
then  in  the  circuit  court  of  any  county  where  the  property 
of  the  debtor  subject  to  attachment  may  be  found,  in  the 
cases,  upon  the  conditions  and  in  the  manner  provided  by 
statute.^* 

When  the  defendant  is  a  resident  of  the  state,  the  suit 
must  be  brought  in  the  county  in  which  either  he  or  the 
plaintiff  resides,  if  the  defendant  has  property  subject  to 
attachment  there,  and  if  not,  or  if  the  defendant  is  a  non- 
resident of  the  state,  then  in  some  county  in  which  the 
defendant  has  such  property.  This  requirement  is  juris- 
dictional and  is  not  relaxed  even  where  the  defendant's 
property  is  mortgaged  to  its  full  value.''* 

Under  this  statute,  a  circuit  court  has  jurisdiction  o^ 

21  Edwards  v.  Hughes,  20  Mich.  Actions  against  corporations,  see 
289;      CottroU     v.     Hatheway,     108       §  4,  ante. 

Mich.    619 ;    Warren   v.   Wintcrstein,  As  to  attachment  against  itinerant 

114  Mich.   647.  vendors,    see   How.   Stat.    (2nd   ed.) 

22  Edwards  v.  Hughes,  20  Mich.  2161;  Jud.  Act,  ch.  26,  §46; 
289.  Comp.  Laws  1915,  §  13073. 

23Jaffray   v.   Jennings,   101   Mich.  26  Stringer  v.  Dean   61  Mich.  196; 

515.  Schloss    V.    Joslyn,    61    Mich.    267; 

24  Jud.    Act,    ch.    26,    §1;    Comp.  Stern   v.  Frazor,   105   Mich.  685. 
Laws  1915,  §  13028.   See  also  Venub. 


96  Attachment  §  6 

an  action  by  one  non-resident  against  another,  personally 
served,  attaching  the  real  property  of  the  latter  situated 
in  the  county,  notwithstanding  the  action  is  based  on  a 
contract  made  and  to  be  performed  in  another  state.^^ 
So  jurisdiction  in  attachment  against  a  non-resident 
debtor  may  be  acquired  by  levy  of  the  writ  on  lands 
alleged  to  have  been  fraudulently  conveyed,^' 

§  7.  Attachment  aiter  commencement  of  action. 

The  Judicature  Act  retains,  substantially  unchanged, 
the  statutory  provisions  relating  to  attachment  "after" 
commencement  of  the  action.  Before  the  Judicature 
Act,  however,  the  right  to  attach  after  the  commence- 
ment of  the  action  was  limited  to  actions  founded  on  con- 
tract; now  it  is  authorized  "in  any  action"  commenced 
L.'7«/^f  ^  '*hy  summons  or  declaration  in  any  court  of  record."^' 
The  procedure  is  practically  the  same  as  where  an  action 
is  commenced  by  attachment,  except  as  otherwise  pro- 
vided by  particular  statutory  provisions  relating  to  the 
affidavit,^®  writ,^°  and  subsequent  proceedings.^^ 

26  State    Bank    v.     Maxson,    123  Such    an    aflS.davit    is   not   invalid 
Mich.  250.     See  also  Courts.  because  of  the  failure  of  the  clerk 

27  Archer    v.    Laidlaw,    129    Mich.  to  indorse  on  it  the  time  it  -nas  re- 
198.  ceived  nor  because  he  neglected  to 

28Jud.   Act,   eh.   26,    §36;    Comp.  keep   it   on   file   but   attached   it   to 

Laws   1915,   §  13063.    J.1,ll<i  O  ^he  writ.    Beebe  v.  Morrell,  76  Mich. 

29  Plaintiff,  or  some  person  in  his  114. 
beialf  may,  after  the  summons  or  30  Jud.  Act,  ch.  26,  §38;  Comp. 
declaration  has  been  personally  Laws  1915,  §  13065.  •  /"^  ^  © 
served  on  the  defendant  or  defend-  81 ' '  The  subsequent  proceedings 
ants,  or  either  of  them,  make  and  file  by  virtue  of  such  attachment,  so  far 
with  the  clerk  of  the  court  in  which  as  the  same  are  not  herein  provided 
the  action  shall  have  been  com-  for,  shall  be  the  same  as  in  suits 
menced,  an  affidavit,  conforming  to  commenced  by  attachment,  so  far 
the  provisions  of  the  statute  author-  as  the  same  are  applicable,  except 
izing  the  commencement  of  suits  by  that  no  additional  declaration  shall 
attachment  in  regard  to  the  affidavit  be  made  necessary  by  such  writ  of 
to  be  annexed  to  the  writ.  Jud.  attachment;  and  any  judgment  re- 
Act,  ch.  26,  §37;  Comp.  Laws  1915,  covered  in  the  action,  in  favor  of 
§13064.       2l.  n^-)  the    plaintiff,    shall    be    conclusive 


7 


Attachment 


97 


Form   of   Writ  of  Attachment   in   Action   ex  Contractu   Commenced  by 

Summons  or  Declaration 
State  of  Michigan. 

The  Circuit  Court  for  the  County  of   

In  the  Name  of  the  People  of  the  State  of  Michigan. 

To  the  Sheriff  of  the  County  of ,  Greeting : 

Whereas  A.  B.,  as  plaintiff,  has  lately  commenced  by  summons,  issued  out 
of  and  uuder  the  seal  of  said  court,  an  action  against  C.  D.,  as  defendant, 
and  has  filed  in  the  oflSce  of  the  clerk  of  said  court  in  said  cause  an  affidavit 
for  a  writ  of  attachment  in  form  and  manner  prescribed  by  law,  whereby 
it  appears  that  the  said  C.  D.,  defendant,  is  indebted  to  the  said  A.  B., 

plaintiff,  in  the  sum  of    dollars,  over  and  above  all  legal  set-offs, 

we  command  you  that  you  attach  so  much  of  the  lands,  tenements,  goods, 
chattels,  moneys,  and  effects  of  the  said  C.  D.,  defendant,  not  exempt  from 
execution,  wherever  the  same  may  be  found  in  your  county,  as  shall  be  suffi- 
cient to  satisfy  the  demand  of  said  plaintiff,  and  that  you  make  an  inven- 
tory thereof,  and  safely  keep  the  same  to  satisfy  any  judgment  that  may 
be  recovered  by  the  said  plaintiff  in  such  action,  and  that  you  serve  a 
copy  of  this  writ  and  a  copy  of  such  inventory,  certified  by  you,  upon  the 
said  defendant,  if  he  can  be  found  in  said  county;  and,  in  case  any  prop- 
erty of  the  defendant  is  found  and  seized  in  said  county,  but  not  sufficient 
to  satisfy  said  demand  and  costs,  then  you  are  hereby  further  commanded 


against  the  defendant,  who  shall 
have  been  personally  served  with 
the  original  summons  or  declara- 
tion; and  the  execution  issued  there- 
on shall  authorize  the  levying  upon 
and  selling  of  any  property  of  the 
defendant  so  personally  served,  not 
exempt  from  execution,  as  well  as 
the  property  attai-hed,  whether  such 
attachment  shall  have  been  person- 
ally served  or  not.  The  defendant 
shall  have  the  same  right  to  procure 
said  attachment  to  be  dissolved  as 
in  other  cases;  but  the  dissolution 
of  such  attachment  shall  have  no 
effect  on  the  proceedings  other  than 
to  release  the  property  attached. 
The  bond  to  be  given  by  the  de- 
fendant for  the  discharge  of  the 
property  so  attached,  shall  be  in  a 
penalty  at  least  double  the  amount 
specified  in  the  affidavit  filed  iu  the 
cause,  as  due  to  the  plaintiff,  and 
shall  be  conditioned  for  the  i)ayment 
1   Al)bott— 7 


of  any  judgment,  which  may  be  re 
covered  by  the  plaintiff  in  the  cause 
in  which  such  writ  of  attachment  is 
issued,  within  sixty  days  after  such 
judgment  shall  be  rendered;  or  in 
a  penalty  double  the  appraised  val- 
ue of  the  j)roperty  attached,  and 
conditioned  that  such  property  shall 
be  produced  to  satisfy  any  execu- 
tion that  may  be  issued,  on  any  judg- 
ment to  be  recovered  by  the  plain- 
tiff in  said  cause.  The  issuing  of 
said  writ  of  attachment,  and  the 
proceedings  under  and  by  virtue  of 
the  same,  shall  in  no  manner  stay 
the  proceedings  commenced  by  the 
original  summons  or  declaration,  but 
the  defendant  may,  aside  from  the 
proceedings  made  necessary  by  such 
attachment,  proceed  in  the  cause  in 
the  same  manner  as  though  no  at 
tachment  had  been  issued.''  .Ind. 
Act,  ch.  2(5,  S§:?9  42;  Comp.  Laws 
1915,  §§1:^066-13069.3  7  •   /-?^f  -,/^^ 


98  Attachment  §  7 

to  attach  other  property  of  the  defendant,  subject  to  attachment,  sufficient 
with  that  seized  within  your  county  to  satisfy  said  demand  and  costs,  -wher- 
ever the  same  may  be  found  mthin  this  state,  and  to  serve  a  copy  of  this 
writ  upon  the  defendant,  if  found  within  either  county  -where  property  haa 
been  seized  under  this  -writ.    And  of  this  writ  make  due  return  on  or  before 

the day  of ,  A.  D (some  day  not  less  than  fourteen 

days  nor  more  than  thirty  days  from  the  issue  of  the  ^Trit),  which  is  the 
return  day  hereof. 

Witness,  Hon.  J.  S.,  circuit  judge,  and  the  seal  of  said  court,  at  the 

of ,  the  place  of  holding  said  court,  this  ....  day  of , 

A.  D 

J.  W., 
Clerk. 
J.  K.,  Plaintiff 's  Attorney. 

Business  address:    ,  Mich. 

Form    of   Writ    of   Attachment   in   Action   ex   Delicto    Commenced  by 
Summons  or  Declaration 

State  of  Michigan. 

The  Circuit  Court  for  the  Coimty  of   

In  the  Name  of  the  People  of  the  State  of  Michigan. 

To  the  Sheriff  of  the  County  of ,  Greeting : 

Whereas  A.  B.,  as  plaintiff,  has  lately  commenced  by  summons,  issued  out 
of  and  under  the  seal  of  said  court,  an  action  against  C.  D.,  as  defendant, 
and  has  filed  in  the  office  of  the  clerk  of  said  court  in  said  cause  an  affidavit 
for  a  -writ  of  attachment  in  form  and  manner  prescribed  by  la-w,  and  where- 
as J.  S.,  judge  of  said  court,  has  ordered  that  property  of  the  said  C.  D., 

defendant,  to  the  amount  or  value  of dollars  may  be  attached  by 

virtue  thereof  to  satisfy  the  plaintiff 's  demand  and  costs,  we  command  you 
that  you  attach  so  much  of  the  lands,  tenements,  goods,  chattels,  moneys  and 
effects  of  the  said  C.  D.,  defendant,  not  exempt  from  execution,  wherever 
the  same  may  be  found  in  your  county,  as  shall  be  sufficient  to  satisfy  the 
demand  of  said  plaintiff,  and  that  you  make  an  inventory  thereof,  and 
safely  keep  the  same  to  satisfy  any  judgment  that  may  be  recovered  by  the 
said  plaintiff  in  such  action,  and  that  you  serve  a  copy  of  this  writ  and  a 
copy  of  such  inventory,  certified  by  you,  upon  the  said  defendant,  if  he  can 
be  found  in  said  county;  and,  in  case  any  property  of  the  defendant  is 
found  and  seized  in  said  county,  but  not  sufficient  to  satisfy  said  demand 
and  costs,  then  you  are  hereby  further  commanded  to  attach  other  property 
of  the  defendant,  subject  to  attachment,  sufficient  -with  that  seized  -within 
your  county  to  satisfy  said  demand  and  costs,  wherever  the  same  may  be 
found  -within  this  state,  and  to  serve  a  copy  of  this  -writ  upon  the  defendant, 
if  found  within  either  county  -where  property  has  been  seized  under  this 

writ.     And  of  this  -writ  make  due  return  on  or  before  the  day  of 

,  A.  D (some  day  not  less  than  fourteen  days  nor  more  than 

thirty  days  from  the  issue  of  the  -writ),  -which  is  the  return  day  thereof. 


9  Attachment  99 


Witness  Hon.  J.  S.,  circuit  judge,  and  the  seal  of  said  court,  at  the 

of    ,  the   place   of  holding  said  court,  this    day  of    , 

A.  D 

J.  W., 
Clerk. 
J.  K.,  Plaintiff's  Attorney. 

Business  address :    ,  Mich. 

II.  Actions  Which  May  Be  Commenced  by  Attachment 

§  8.  Actions  ex  contractu. 

Any  action  based  on  contract  may  be  commenced  by 
attachment,  if  one  of  the  statutory  grounds  for  attach- 
ments exists,^^  unless  it  is  otherwise  provided  by  statute. 

§  9.  Where  debt  not  due. 

The  statutory  provisions  relating  to  attachment  are 
applicable  only  to  actions  to  collect  debts  due,  as  dis- 
tinguished from  debts  not  due,  except  as  the  latter  are 
specially  provided  for  in  a  particular  section  of  the  stat- 
utes first  enacted  in  1889,  prior  to  which  time  no  attach- 
ment suit  could  be  brought  to  collect  a  debt  not  due. 

By  this  statute,  whenever  the  plaintiff  is  entitled  to  a 
writ  of  attachment  by  virtue  of  the  provisions  already  ex- 
plained, except  that  the  debt  owing  to  him  by  the  debtor 
is  not  due,  he  may  begin  and  prosecute  his  suit  by  at- 
tachment by  complying  with  the  statute  '^  which  pro- 
vides that  before  any  writ  of  attachment  can  issue  in  a 
case  where  the  debt  is  not  due,  the  plaintiff  or  some  per- 
son in  his  behalf  must  make  an  affidavit  the  same  in  all 
respects  as  the  affidavit  for  attachment  in  other  cases 
except  that,  instead  of  stating  that  the  indebtedness  is 

82  Grounds,  see   §  12,  post.  decision  in  the  suit  unless  otherwise 

33  Jud.   Act,   ch.    26,    §  35 ;    Comp.  discharged.      No    judgment    can    be 

Laws    1915,    §  13062.      This    statute  taken  upon  the  indebtedness  until  it 

is    constitutional.      Mosher    v.    Bay  has  matured  by  its  terms.     Jud.  Act, 

Circuit  Judge,  108  Mich.  503.  ch.    26,    §35;     Comp.    Laws    1915, 

The  lien  created  by  such  writ  of  §  13062. 
attachment  continues  until  the  final 


100  Attachment  §  9 

due,  it  shall  state  when  the  indebtedness  will  become  due 
and  show  reasons  for  the  immediate  issuance  of  the  writ 
io  the  satisfaction  of  a  circuit  judge,  and  obtain  his  order 
indorsed  on  such  affidavit  that  the  writ  may  issue  and 
be  proceeded  with.  No  other  or  further  affidavit  is  re- 
quired. 

It  seems  that  the  analogies  of  practice  in  cases  under 
the  fraudulent  debtor's  act  and  in  injunction  cases  are 
applicable  to  proceedings  under  this  statute.  The  plain- 
tiff must  ''show  reasons  for  the  immediate  issuance  of 
the  writ."  Such  showing  must  consist  of  facts  within 
the  knowledge  of  the  affiant,  and  not  mere  conclusions  of 
fact.^*  This  proceeding  is  a  most  extraordinary  remedy, 
and  the  reason  for  the  issuance  of  the  writ  must  be  shown 
by  facts  and  circumstances  so  given  in  detail  that  the 
circuit  judge  can  satisfy  himself  from  such  facts  and  cir- 
cumstances that  the  writ  ought  to  issue.  It  will  not  do  for 
the  affiant  simply  to  swear  that  he  knows  that  the  de- 
fendant has  assigned,  disposed  of  or  concealed  his  prop- 
erty with  intent  to  defraud  his  creditors,  but  he  must  set 
forth  the  facts  attending  such  disposition  or  concealment 
of  the  property  and  its  relation  as  to  value  to  the  re- 
mainder of  the  property  owned  by  the  debtor,  so  that  the 
court  may  know  something  about  it  as  well  as  the  affiant.^ 

The  writ  cannot  issue  until  the  plaintiff  has  obtained 
the  order  of  a  circuit  judge  indorsed  on  the  affidavit  that 
the  writ  may  issue  and  be  proceeded  with,  and  the  affi- 
davit witli  the  order  indorsed  upon  it  is  presented  to  the 
clerk  of  the  court. ^^ 

84  Howell  V.  Dickerman,  88  Mich.  86  Attachment  is  void  where  writ 

361.  was  issued  and  attached  to  the  af- 

86  Howell  V.  Dickerman,  88  Mich.      fidavit  when  presented  to  the  judge. 
361;   Mosher  v.   Bay  Circuit  Judge,       Howell  v.   Muskegon   Cir<niit  .Tudgc, 
108  Mich.  503;   E.  H.  Chase  &  Co.       88  Mich.   .S69. 
V.  Wayne  Circuit  Judge,  118  Mich. 
358;    Pierce    v.    .Tolmsnu,    015    Midi. 
125. 


^  11  Attachment  101 

Form  of  Affidavit  for  Writ  of  Attachment  When  Indebtedness  Not  Due 

Stiitc   of    Michigan,   ) 
County    of I 

A.  B.,  being  duly  sworn,  deposes  and  says  that  C.  D.  is  indebted  to  him 

in  the  sum  of dollars,  as  near  as  may  be,  over  and  above  all  legal 

set-offs  and  that  the  said  indebtedness  will  become  due  upon  contract  on  the 
day  of ,  A.  D 

Deponent  further  says  that  the  reasons  for  the  immediate  issuance  of  a 
writ  of  attachment  out  of  the  circuit  court  for  said  county  in  favor  of  this 
deponent  against  the  lands,  tenements,  goods,  chattels,  moneys  and  effects 
of  the  said  C.  D.  are  that  (state  the  facts  showing  why  an  attachment  of  the 
property  of  the  defendant  cannot  be  safely  delayed  until  the  indebtedness 
matures).     [Conclude  as  in  form  under  §  13.] 

Form  of  Order  to  Be  Indorsed  on  Affidavit  for  Writ  of  Attachment  When 
Indebtedness  Not  Due 

On  reading  the  within  affidavit,  it  is  ordered  that  a  writ  of  attachment 
in  accordance  therewith  may  issue  and  be  proceeded  with. 

J.  S., 
Circuit  Judge. 

§  10, Where  tort  is  waived. 

In  all  cases  where  a  party  has  a  right  of  action  for  the 
taking  of  timber,  or  other  trespass  on  lands,  he  may  waive 
the  tort,  and  bring  an  action  of  assumpsit,  and  may  com- 
mence such  action  by  attachment,  as  in  other  cases.  The 
affidavit  for  such  attachment  must  state  the  amount  due 
to  the  plaintitf,  as  near  as  may  be;  and  the  fact  that  the 
damages  are  unliquidated  will  not  prevent  the  bringing 
and  maintaining  of  such  writ.^' 

§  11.  Actions  ex  delicto. 

While  formerly  an  action  of  tort  could  not  be  com- 
menced by  attachmont,^^  it  is  now  provided  by  statute 
that  actions  based  upon  tort  may  be  commenced  by  at- 
tachment where  the  affidavit  sets  forth  in  detail  tlie  cause 

37Jud.   Act,   ch.   26,    *!44;    Conip.  38  Farmers'  Nat.  Bank  v.   Fonda, 

Laws  1915,  §  13071.  65    Mich.    533. 

Such  an  action  ia  transitory  and 
not  local.  Bradley-Watkins  Co.  v. 
Circuit   Judge,    144   Mich.   147. 


102  Attachment  §  11 

of  action  and  the  judge  shall  make  an  order  authorizing 
the  issuance  of  an  attachment.^^  Prior  to  the  Judicature 
Act,  an  attachment  in  an  action  for  a  tort  could  be  used 
to  commence  an  action  only  against  non-residents  or  for- 
eign corporations,  but  such  limitation  is  now  abolished. 

The  writ  is  in  the  same  general  form  as  in  attachment 
suits  on  contract,  and  the  proceeding  is  the  same  as  in 
actions  on  contract,  except  as  hereinafter  explained. 

Under  the  statute,  in  all  actions  based  upon  tort,  the 
affidavit  must  set  forth  in  detail  the  plaintiff's  cause  of 
action.***  The  affidavit  must  be  made  by  the  plaintiff  or 
some  other  person  in  his  behalf,  who  has  knowledge  of  the 
facts  stated  therein,  and  must  set  forth  the  cause  of  action 
in  detail. 

The  facts  required  to  be  stated  in  the  affidavit  must 
be  set  out  upon  the  knowledge  of  the  affiant  and  with  rea- 
sonable certainty.  The  principle  is  not  diiferent  from 
that  involved  in  affidavits  for  attachment  in  cases  when 
the  debt  is  not  due  and  in  affidavits  required  before  an 
arrest  is  authorized.  The  affidavit  must  contain  a  com- 
plete statement  of  facts  sufficient  to  show  the  plaintiif 
entitled  to  recover  if  the  facts  are  undisputed,  and  this 
must  be  not  merely  a  recital,  but  a  direct  statement  of  the 
facts  upon  the  personal  knowledge  of  the  affiant.*^ 

Upon  the  basis  of  such  affidavit,  the  judge  of  the  cir- 
cuit in  which  the  action  is  commenced  may  make  an  order 
authorizing  the  issuance  of  the  writ  of  attachment  and 
specifying  the  amount  or  value  of  the  property  which 
may  be  attached  thereunder.  Such  order  must  also  re- 
quire the  plaintiff  to  file  a  bond  with  a  penalty  fixed  in 
the  order,  with  sureties  to  be  approved  by  the  clerk  of  the 
court,  conditioned  that  the  plaintiff  will  prosecute  the 

89Jud.    Act,   ch.   26,  §22;    Comp.           41  McCrea    v.    Eussell,    100    Mich. 

Laws  1915,   §  13049.  375.      See    also    HOTell    v.    Dicker- 

40Jud.   Act,   ch.   26,  §22;    Comp.       man,    88    Mich.    361;     Sheridan    v. 

Laws  1915,   §  13049.  Briggs,  53  Mich.  569. 


§  11  Attachment  103 

suit  with  diligence  and  pay  any  damages  and  costs  that 
may  be  awarded  to  the  defendant  either  in  that  suit  or  in 
any  action  brought  by  the  defendant  for  damages  accru- 
ing from  the  attachment.*^  The  writ  should  not  be  issued 
until  the  bond  has  been  approved  and  filed. 

Property  attached  under  a  writ  of  attachment  in  ac- 
tions for  tort  may  be  released  in  the  same  manner  as 
property  attached  in  suits  upon  contract. 

The  same  proceedings  are  necessary  in  serving  and  exe- 
cuting writs  of  attachment  in  actions  for  tort  as  in  actions 
upon  contract,  and  service  upon  the  defendant  must  be 
had  in  the  same  manner  as  explained  in  other  cases  of 
attachment. 

Form  of  Affidavit  to  Be  Annexed  to  Writ  of  Attachment  in  Action 

of  Tort 

State   of   Michigan, 
County    of 

A.  B.,  being  duly  sworn,  deposes  and  says  that  lie  is  the  plaintiff  named 
in  the  annexed  writ  of  attachment;  that  this  action  is  an  action  of  trespass 
on  the  case,  and  that  the  following  is  a  statement  of  the  cause  of  action 
herein:  (Here  state  fully  the  facts  constituting  the  cause  of  action  by  posi- 
tive averments,  not  by  mere  recital.  This  must  be  a  complete  statement  of 
facts,  sufficient  to  show  the  plaintiff  entitled  to  recover,  if  the  facts  are  un- 
disputed.) 

Deponent  further  says  that  he  knows  (or,  has  good  reason  to  believe 
and  does  believe,  etc.,  as  in  form  under  §  13). 

A.  B. 

Subscribed,  etc. 

Form  of  Order  for  Attachment  in  Action  of  Tort 

(Title  of  court  and  cause.) 

On  reading  the  affidavit  of  A.  B.,  plaintiff  herein,  for  a  writ  of  attach- 
ment to  be  issued  out  of  this  couH  against  the  lands,  tenements,  goods, 
chattels,  moneys  and  effects  of  C.  D.,  defendant  herein,  on  motion  of  J.  K., 
attorney  for  plaintiff,  it  is  ordered  that  said  writ  of  attachment  be  issued 
and  that  property  of  the  said  C.  D.  to  the  amount  or  value  of dol- 
lars may  be  attached  by  virtue  thereof,  but  that  the  said  plaintiff,  before 
the  issuance  of  said  writ,  shall  file  herein  a  bond  in  the  sum  of dol- 

42  Jud.  Act,   ch.   26,    §  22 ;    Comp. 
Laws  1915,  §13049. 


104  •  Attachment  §  11 

lars,  with  sureties  to  be  approved  by  tlie  clerk  of  this  court,  conditioned 
that  the  said  plaintiff  will  prosecute  this  suit  with  diligence  and  will  pay 
any  damages  and  costs  that  may  be  awarded  to  said  defendant  in  said 
attachment,  either  in  this  suit  or  any  action  brought  by  the  said  defendant 
for  damages  accruing  by  reason  of  said  attachment. 

J.  S., 
Circuit  Judge. 

III.  Grounds 

§  12.  Enumeration. 

The  statutory  grounds  for  attachment,  in  an  action  on 
a  contract,  are  that  (1)  ''defendant  has  absconded,  or 
is  about  to  abscond  from  this  State,  or  that  he  is  con- 
cealed therein,  to  the  injury  of  his  creditors";*^  or  that 
(2)  ''defendant  has  assigned,  disposed  of  or  concealed,  or 
is  about  to  assign,  dispose  of  or  conceal  any  of  his  prop- 
erty with  intent  to  defraud  his  creditors";**  or  that  (3) 
"defendant  has  removed,  or  is  about  to  remove  any  of 
his  property  out  of  this  State,  with  intent  to  defraud  his 
creditors";  or  that  (4)  defendant  "has  fraudulently  con- 
tracted the  debt,  or  incurred  the  obligation  respecting 
which  the  suit  is  brought";*^  or  that  (5)  "defendant  is 

43  Absconding  involves  design  to  Mich.  542 ;  Lord  v.  Wirt,  96  Mich, 
conceal  one's  self  for  the  purpose  of       415. 

avoiding    legal    proceedings.     Mere  45  Where   there   are  a  number   of 

temporary  absence  for  health  is  in-  claims,    only    part    of    which    were 

sufficient.     McMorran  v.  Moore,  113  fraudulently    contracted,    there    can 

Mich.   101.  be  no  attachment  for  the  aggregate 

44  Making  exchange  of  real  estate  amount.  Estlow  v.  Hanna,  75  Mich, 
with  one's  wife  is  not  a  fraudulent  219. 

transfer,  where   made  when  defend-  Burden   of   proof   is   on   plaintiff, 

ant  was  solvent.     Iosco  County  Sav.  and    fraud    is    not    inferable    from 

Bank  v.  Barnes,  100   Mich.   1.  ntere  breach  of  contract.     Powers  v. 

Preferring   other   creditors   is   not  O  'Brien,  44  Mich.  317. 

fraudulent.     Gore  v.  Ray,  73   Mich.  When  indebtedness  is  fraudulently 

•385;   First  Nat.   Bank  v.  Steele,  81  contracted,    see   Emerson   v.   Detroit 

Mich.   93;   Iosco   County  Sav.   Bank  Steel  &  Spring  Co.,  100  Mich.  127; 

v.   Barnes,   100   Mich.   1.     See,   gen-  May     v.     Newman,     95     Mich.    501. 

erally,  Armstrong  v.  Cook,  95  Mich.  Fraud  held  not  shown,  see  Feldman 

257;    Pierce    v.    Johnson,    93    Mich.  v.    Preston,   194   Mich.    352. 
125;    McBryan    v.    Trowbridge,    125 


§  13  Attachment  105 

not  a  resident  of  this  State,  and  has  not  resided  therein 
for  three  months  immediately  preceding  the  time  of  mak- 
ing such  affidavit";  *®  or  that  (6)  "defendant  is  a  foreign 
corporation."  *''' 

To  sum  up,  an  action  may  be  commenced  by  attach- 
ment only  where  there  is  fraud  of  some  kind  or  non-resi- 
dence, except  that  the  statute  in  another  section  author- 
izes attachment  to  start  a  suit  against  a  domestic  corpora- 
tion where  plaintiff  resides  in  a  county  other  than  the 
one  where  the  principal  office  of  the  corporation  is  lo- 
cated.*^ 

IV.  Affidavits 

§  13.  Necessity  for  and  contents  in  general. 

In  actions  based  on  contract,  where  the  debt  is  due, 
the  statute  requires  that  before  any  writ  of  attach- 
ment shall  be  executed,  the  plaintiff  or  some  person  in  his 
behalf  shall  make  and  annex  thereto  an  affidavit,  stating 
that  the  defendant  therein  is  indebted  to  the  plaintiff,  and 
specifying  the  amount  of  such  indebtedness  as  near  as 
may  be,  over  and  above  all  legal  set-offs,  and  that  the 
same  is  due  upon  contract  or  upon  judgment  or  decree, 
and  containing  a  further  statement  that  the  deponent 
knows,  or  has  good  reason  to  believe,  either  one  of  the 
several  grounds  for  attachment  hereinbefore  enumer- 
ated.*® 

The  making  and  annexing  to  the  writ  of  the  affidavit  is 
a  jurisdictional  prerequisite,  being  one  of  the  conditions 

46  Temporary  residence  in  another  47  Jud.    Act,    ch.    26,    §2;    Comp. 

state,  caused  by  unlawful  seizure  of  Laws   1915,   §  13029. 

goods,   is   not   ground.      Erickson    v.  48  Jud.    Act,    ch.    26,    §3;    Comp. 

Drazkowski,  94   Mich.   551.  Laws    1915.    §13030,    and    see    §4, 

One    who    has    made    declarations  ante, 

that   his   home   is   in   another   state,  49  Jud.    Act,    ch.    26,    §2;    Comp. 

where    his   wife    owns    a   house    and  Laws    1915,    §  13029. 

lives,    is    a    nonresident    though    he  Grounds,  see   §  12,  ante. 
stays  most  of  his  time  in  this  state. 
Lodcr  V.  Littlefield,  39  Mich.  512. 


106  Attachment  §  13 

provided  by  the  statute  upon  wliicli  a  creditor  is  entitled 
to  proceed  by  attachment.^"  The  affidavit,  when  annexed 
to  the  writ,  becomes  in  legal  effect  a  part  of  it,  and  if  it 
be  void,  or  if  there  be  no  affidavit  at  all,  the  writ  is  void 
also.^^  There  can  be  no  valid  writ  of  attachment  without 
a  sufficient  affidavit,^**  and  the  provision  that  the  affidavit 
must  be  attached  to  the  writ  of  attachment  is  man- 
datory.^' 

The  affidavit  must  not  only  show  a  ground  for  attach- 
ment but  it  must  be  backed  up  by  a  declaration  setting 
up  a  cause  of  action  such  as  will  support  the  attachment; 
otherwise  the  attachment  may  be  set  aside." 

Affidavits  in  actions  for  torts  ^^  and  in  actions  to  re- 
cover a  debt  not  due,^^  have  already  been  noticed. 

ronn  of  Affidavit  to  Be  Annexed  to  Writ  of  Attacliment  by  Wliicli  a 
Suit  Upon  Contract,  Judgment  or  Decree  Is  Commenced 

State   of  Michigan,  | 
County    of.. 


m,  I 


A.  B.,  being  duly  sworn,  deposes  and  says  that  he  is  the  plaintiff  named 
in  the  annexed  writ  of  attachment  (or,  if  the  affidavit  is  made  by  some  per- 
son in  behalf  of  the  plaintiff,  substitute,  after  the  words,  deposes  *nd  says, 
the  following:  That  he  is  attorney  [or,  agent,  as  the  ca»e  may  be]  for 
A.  B.,  the  plaintiff  named  in  the  annexed  writ  of  attachment,  and  makes 
this  affidavit  in  his  behalf) ;  that  C.  D.,  the  defendant  named  in  said  writ, 

is  indebted  to  the  said  plaintiff  in  the  sum  of   dollars,  as  near  as 

may  be,  over  and  above  all  legal  set-offs;  and  that  the  said  indebtedness  is 
due  upon  contract  (or,  upon  judgment,  or  upon  decree,  as  the  case  may  be). 

Deponent  further  says  that  he  knows  (or,  has  good  reason  to  believe, 
and  does  believe)   that  the  said  defendant  has  absconded   (or,  is  about  to 

60  Green  vault  v.  Farmers  &  M.  B2Beebe  v.  Morrell,  76  Mich.  114. 
Bank,  2  Doug.  498;  Wilson  v.  Ar-  53  Yale  State  Bank  v.  Fletcher, 
nold,  5  Mich.  98;  Mathews  v.  Dens-  173  Mich.  585,  following  Holmes  v. 
more,  43  Mich.  461;  Borland  v.  King,  158  Mich.  445. 
Kingsbury,  65  Mich.  59;  Burnside  v.  64  Feldman  v.  Preston,  194  Mich. 
Davis,  65  Mich.  74;  Estlow  v.  Han-  352,  362, 

na,  75  Mich.  219;  Beebe  v.  Morrell,  65  See  §11,  ante. 

76  Mich.  114.  66  See   §  9,  ante. 

61  Mathews  v,  Densmore,  43  Mich. 
461;  Yale  State  Bank  v.  Fletcher, 
173  Mich.  585. 


§  14  Attachment  107 

abscond)  from  this  state  (or,  is  concealed  in  this  state),  to  the  injury  of 
hii  creditors. 

Or, 

Deponent  further  says  that  he  knows  (or,  has  good  reason  to  beliexe,  and 
does  believe)  that  the  said  defendant  has  assigned,  disposed  of,  or  coa- 
cealed  (or,  is  about  to  assign,  dispose  of,  or  conceal)  his  property  (or,  a 
portion  of  his  property)  with  intent  to  defraud  his  creditors. 

Or, 

Deponent  further  says  that  he  knows  (or,  has  good  reason  to  belioTe, 
and  does  believe)  that  the  said  defendant  has  removed  (or,  is  about  to 
remove)  his  property  (or,  a  portion  of  his  property)  out  of  this  state,  with 
intent  to  defraud  his  creditors. 

Or, 

Deponent  further  says  that  he  knows  (or,  has  good  reason  to  believe,  and 
does  believe)  that  the  said  defendant  has  fraudulently  contracted  the  debt 
or  incurred  the  obligation  respecting  which  this  suit  is  brought. 

Or, 

Deponent  further  says  that  he  knows  (or,  has  good  reason  to  believe, 
and  does  believe)  that  the  said  defendant  is  not  a  resident  of  this  itatt, 
and  has  not  resided  therein  for  three  months  immediately  preceding  the  time 
of  making  this  affidavit. 

Or, 

Deponent  further  says  that  he  knows  (or,  has  good  reason  to  believe 
and  does  believe)  that  the  said  defendant  is  a  foreign  corporation. 

A.  B. 

Subscribed,  etc. 

§  14.  Statements  on  information  and  belief. 

The  affidavit,  whether  made  by  the  plaintiff  or  by  some 
person  in  his  behalf,  should  state  positively,  and  not 
merely  upon  information  and  belief,  that  the  defendant  in 
the  writ  is  indebted  to  the  plaintiff,  the  amount  of  the 
indebtedness,  as  near  as  may  be,  over  and  above  all  legal 
set-offs,  that  the  indebtedness  is  due,  and  the  nature  of  it, 
— whether  it  be  upon  contract  or  upon  judgment  or  de- 
cree.^'' However,  the  other  facts  to  be  stated,  i.  e.,  the 
grounds  for  the  attachment,  may  be  sworn  to  on  belief, 
since  the  statute  expressly  provides  that  the  affidavit 
shall  state  that  the  ' '  deponent  knows  or  has  good  reason 
to  believe. ' '  ^^ 

67  Wilson  v.  Arnold,  5  Mich.  98;  68  Wilson  v.  Arnold,  5  Mich.  98, 

Nicolls  V.  Lawrence,  30  Mich.  395.  104. 


108  Atiachmkxt  ^  IT) 

§  15.  Averment  of  indebtedness. 

The  affidavit  must  contain  a  positive  statement  that  the 
defendant  is  indebted  to  the  plaintiff.  A  statement  of  the 
indebtedness  upon  information  and  belief,  whether  the 
jifiidavit  be  made  by  the  plaintiff  or  by  an  agent,  is  in- 
sufficient. An  allegation  in  the  affidavit  that  two  de- 
fendants, naming  them,  are  "justly  indebted"  to  the 
plaintiff  imports  a  joint  indebtedness.*^^ 

It  is  necessary  to  specify  the  amount  of  the  indebted- 
ness.^" The  amount  must  be  specified  "as  near  as  may 
be,  over  and  above  all  set-offs."  "  The  fact  that  the  de- 
mand is  unliquidated  does  not  exclude  the  remedy  by 
writ  of  attachment,  if  the  amount  is  susceptible  of  ascer- 
tainment by  some  standard  referable  to  the  contract  it- 
self sufficiently  certain  to  enable  the  affiant  to  aver  it  "  as 
near  as  may  be,"  or  a  jury  to  find  it.^^  It  is  not  required 
that  the  amount  of  the  indebtedness  should  be  stated  with 
l)ositive  certainty.  This,  in  many  cases,  would  be  impos- 
sible. All  that  the  statute  requires  is  that  it  be  stated  * '  as 
near  as  may  be,"  and  where  the  affidavit  contains  an  aver- 
ment of  the  amount  "as  near  as  deponent  can  estimate  the 
same,"®^  or  "as  near  as  can  be  specified  by  this  depo- 
nent,"®* it  is,  in  this  respect,  sufficient. 

Where  the  affidavit  stated  that  the  defendants  "are 
indebted  to  said  plaintiff  in  the  sum  of  six  thousand  and 
fifty  dollars  over  and  above  all  legal  set-otfs,"  it  was  not 
defective  for  omitting  the  qualifying  words  of  the  statute, 

59  Wilson   V.   Arnold,  5  Mich.   98.  contract  where  they  are  susceptible 

60  Jud.  Ac!t,  ch.  26,  §2;  Comp.  of  ascertainment  by  a  standard  ref- 
l-aws   1915,   §  13029.  erable   to   the   contract.     Showen   v. 

61  Jud.  Act,  ch.  26,  §2;  Comp.  J.  L.  Owens  Co.,  158  Mich.  321,  334, 
Laws  1915,  §  13029.  approving    Eoelofson    v.    Hatch,    3 

62Roelofson    v.    Hatch,    3    Mich.  Mich.  277,  which  latter  case  should 

277;    Showen    v.    J.    L.    Owens    Co.,  be  read  at  length  on  this  question. 
158  Mich.  321.  63  Nieolls    v.    Lawrence,   30    Mich. 

Attachment    lies    in    case    of    un-  395. 
liquidated    damages    for    breach    of  64  Barker  v.  Thorn,  20  Mich.  264. 


§  15  Attachment  109 

"as  near  as  may  be,"  because  the  affiant  stated  the 
amount  as  near  as  may  be  when  he  stated  it  exactly.*' 
But  where  it  fails  to  state  the  amount  of  the  indebted- 
ness ''over  and  above  all  legal  set-offs,"  it  is  fatally  de- 
fective.** 

If  the  debt  is  due,  the  affidavit  must  aver  that  the  in- 
debtedness is  due.  It  is  void  if  it  does  not.  It  is  the 
plain  intention  of  the  statute  that,  as  a  condition  preced- 
ent to  the  plainti^ff's  availing  himself  of  the  remedy  by 
attachment,  he  show  by  the  affidavit,  either  of  himself  or 
of  another,  that  he  has  an  existing  cause  of  action;  in 
other  words,  that  there  is  an  indebtedness  of  the  defend- 
ant which  is  due  and  payable  at  the  time.  It  is  accord- 
ingly held  that  where  the  affidavit  stated  merely  that  the 
''defendant  is  indebted,"  it  was  defective  for  not  also 
stating  that  the  indebtedness  was  "due."  *' 

Prior  to  the  Judicature  Act  the  affidavit  was  required 
to  state  that  the  debt  was  due  upon  ' '  contract,  express  or 
implied,"  but  the  Judicature  Act  omits  the  words  "ex- 
press or  implied. ' '  Under  the  statute  before  the  change, 
it  was  held  that  the  affidavit  ought  to  show  whether  the 
indebtedness  was  upon  an  express  contract  or  an  implied 
one,  or  on  judgment,  or  on  any  two  or  all  of  them,*'  and 
that  it  must  state  whether  the  contract  was  express  or 
implied,*®  an  allegation  in  the  disjunctive  being  insuffi- 
cient,'''' but  that  it  was  not  necessary  in  any  case  to  state 
the  nature  of  the  express  or  implied  contract,  or  the  par- 
es Grover  v.  Buck,  34  Mich.  519.  erson  v.  Detroit  Steel  &  Spring  Co., 

66  Wells  V.  Parker,  26  Mich.  102.       100   Mich.   127. 

67  Cross    V.    McMaken,    17    Mich.  Attachment   where   debt    not  due, 
511;     Mathews     v.     Densmore,     43       see   §9,  ante. 

Mich.    461.      See    also    Galloway    v.  68  Wilson   v.   Arnold,  5   Mich.  98, 

Holmes,  1  Doug.  330;  Hale  v.  Chan-  104. 

dler,  3  Mich.  531.  69  People   v.   Blanchard,   61   Mich. 

But  fact  that  part  of  debt  is  not  478. 

due,    as    stated,    where    there    is    no  70  Buehlcr   v.   DeLemos,   84   Mich, 

fraud,    does    not    make    attachment  554. 
void  as  to  amount  in  fact  due.    Em- 


110  Attachment  §  15 

ticulars  of  the  judgment,'^  and  that  it  was  sufficient  to 
allege  that  the  debt  was  due  upon  express  "and"  implied 
contract.''^  These  decisions  are  no  longer  of  any  force 
except  so  far  as  they  are  authority  for  holding  that  the 
affidavit  must  state  whether  the  debt  is  due  upon  contract, 
or  upon  judgment  or  decree,  and  that  the  nature  of  the 
contract  or  the  particulars  of  the  judgment  need  not  be 
stated. 

An  affidavit  stating  that  certain  persons  named,  "a 
co-partnership,"  under  a  given  firm  name,  are  indebted 
to  affiant,  etc.,  imports  a  joint  partnership  debt,  and  will 
support  an  attachment  against  such  of  them  as  are  non- 
residents.'' 

To  warrant  the  issuing  of  a  writ  of  attachment  under 
the  statute  relative  to  proceedings  by  attachment  in  the 
circuit  courts,  it  is  necessary  that  the  amount  stated  in 
the  affidavit  as  due  to  the  plaintiff  over  and  above  all  legal 
set-offs  exceed  the  sum  of  one  hundred  dollars."'^*  It  must 
be  shown  affirmatively  and  positively,  on  the  face  of  the 
affidavit,  that  a  sum  certain,  above  one  hundred  dollars, 
is  due  the  plaintiff,  over  and  above  all  legal  set-offs.''^ 

§  16.  Allegation  of  grounds  for  attachment In  gen- 
eral. 

In  addition  to  the  allegation  of  the  indebtedness,  its 
amount,  its  maturity  and  its  nature,  which,  as  has  been 
asserted,  must  be  positively  made,  the  affidavit  must  con- 
tain a  further  statement  that  the  deponent  knows  or  has 
good  reason  to  believe  that  one  or  more  of  the  grounds 
mentioned  in  the  statute  exist  for  the  defendant's  being 

71  Drew  V.  Dequindre,  2  Doug.  93.  74Jud.    Act,    ch.    26,    §5;    Comp. 

This  is  undoubtedly  the  law  now.      Laws  1915,  §  13032. 

72Buehler  v.   DeLemos,   84   Mich.  75  Barker  v.  Thorn,  20  Mich.  264; 

554;    Emerson    v.    Detroit    Steel    &      Hinchman  v.  Town,  10  Mich.  508. 
Spring  Co.,   100   Mich.   127. 

78  People  V.  Bay  Circuit  Judge,  41 
Mich.  326. 


§  17  Attachment  111 

prosecuted  by  writ  of  attachment.  It  will  be  noticed  that 
the  statute  distinguishes,  in  respect  of  the  certainty  and 
positiveness  of  allegation  required,  between  the  state- 
ment of  the  indebtedness  and  the  statement  of  the 
grounds  for  the  writ.  The  facts  relating  to  the  indebted- 
ness due  the  plaintiff  are  naturally  within  the  knowl- 
edge of  the  plaintiff  or  his  agents,  to  the  extent  at  least 
of  enabling  a  positive  statement  of  such  facts  to  be  made, 
while,  on  the  other  hand,  the  facts  which  constitute  tile 
grounds  for  the  writ  are  such  as  would  often  be  within 
the  defendant's  knowledge.  The  former  must,  therefore, 
be  stated  upon  the  deponent's  own  knowledge  and  not 
upon  his  mere  information  and  belief,  while  the  latter 
may  be  alleged  either  as  of  the  deponent's  knowledge  or 
as  of  his  having  good  reason  to  believe.'^  It  is  not  suffi- 
cient that  he  state  merely  his  belief.  He  must  state  that 
he  has  good  reason  to  believe.''"' 

§  17.  Allegation  that  defendant  has  absconded,  etc. 

An  affidavit  which  alleges  that  the  defendant  has  ab- 
sconded from  the  state,  but  does  not  allege  that  he  has 
absconded  ''to  the  injury  of  his  creditors,"  would  afford 
no  basis  for  the  issuance  of  a  writ  of  attachment.'^  The 
same  would  be  true  of  an  affidavit  which  alleged  merely 
that  the  defendant  was  about  to  abscond  from  this  state, 
or  of  an  affidavit  which  alleged  merely  that  he  was  con- 
cealed therein.  An  absconding  debtor  has  been  defined  as 
one  who,  with  intent  to  defeat  or  delay  the  demands  of  his 
creditors,  conceals  himself  or  withdraws  himself  from  his 
usual  place  of  residence  beyond  the  reach  of  their  proc- 
ess.''® It  has  been  said  that  if  a  debtor  departs  from  his 
usual  residence  or  remains  absent  therefrom  or  conceals 
himself  in  his  house,  so  that  he  cannot  be  served  with 

76  Jud.    Act,    ch.    26,    §  2 ;    Comp.  77  Hunt  v.  Strew,  39  Mich.  368. 

Laws     1915,     §13029;     Wilson     v.  78  Hewitt  v.  Terry,  56  Mich.  591. 

Arnold,  5  Mich.  98.  79  Drake,  Attachm.  sec.  48. 


112  Attachment  §  17 

process,  with  intent  unlawfully  to  delay  or  defraud  his 
creditors,  he  is  an  absconding  debtor."  But  mere  tempo- 
rary absence  for  health  is  not  absconding.^^ 

§  18.  Alleg-ation  that  defendant  has  assigned  his 

property,  etc. 

An  affidavit  Avhich  alleges  that  the  defendant  ''has  as- 
signed, disposed  of  or  concealed,  or  is  about  to  assign, 
dispose  of  or  conceal,  his  property,  with  intent  to  defraud 
his  creditors,"  is  fatally  defective  because  in  the  alterna- 
tive. The  affidavit  for  a  writ  of  attachment  should  show 
the  existence  of  either  one  cause  or  the  other.'*  But 
where  the  averment  was  that  the  defendant  ' '  is  about  to 
assign,  dispose  of  or  conceal  her  property  with  intent  to 
defraud  her  creditors,"  it  was  held  not  bad  as  being  in 
the  alternative,  because  in  fact  only  one  ground  was 
alleged,  viz.,  the  intent  either  to  assign,  dispose  of  or 
conceal.  This  phrase  constitutes  one  ground  for  the 
Avrit.''  But  it  is  quite  possible  for  several  good  reasons 
to  co-exist  for  suing  out  an  attachment,  and  there  is  no 
reason  why  one  should  destroy  the  other  when  all  are  con- 
sistent. It  is  accordingly  held  that  where  the  defendant 
was  charged  in  the  affidavit  with  having  "assigned,  dis- 
posed of  and  concealed,"  and  with  being  "about  to  as- 
sign, dispose  of  and  conceal,  its  property,  with  intent  to 
defraud  its  creditors,"  the  averment  was  not  objection- 
able.'* It  is  not  necessary  that  the  acts  alleged  to  have 
been  done,  or  the  acts  which  the  defendant  is  alleged  to  be 
about  to  do,  should  concern  all  of  his  property,  nor  is  it 
essential  that  the  intent  to  defraud  his  creditors  should 
extend  to  all  of  his  creditors.    It  is  enough  if  the  intent 

80  Fitch  V.  Waite,  5  Conn.  121.  83  Jones  v.  Peek,  101  Mich.  389. 

81  McMorran  v.  Moore,  113  Mic^h.  84  Detroit  Free  Press  Co.  v.  Med- 
101.                                                                   ical  Ass'n,  64  Mich.  605. 

82  Kegel      V.      Schrenkheisen,      37 
Mich.    174. 


^5  21  Attachment  113 

contemplates  only  a  single  creditor,  Av^lietlier  such  cred- 
itor be  the  plaintiff  or  another.*® 

§  19. Allegation  of  removal,  etc.,  of  property. 

Where  the  affidavit  stated  merely  a  belief  that  the  de- 
fendant was  about  to  remove  his  property  with  intent  to 
defraud  his  creditors,  but  did  not  state  that  the  affiant 
had  any  reason  to  believe  it,  the  court  held  the  attach- 
ment proceeding  invalid.®^ 

§20.  Allegation  that  debt  was  fraudulently   con- 
tracted. 

When  the  ground  for  the  attachment  is  that  the  de- 
fendant fraudulently  contracted  the  debt  or  incurred  the 
obligation  respecting  which  the  suit  is  brought,  it  should 
be  remembered  that  if  any  part  of  the  indebtedness  is  not 
affected  by  the  fraud,  the  affidavit  may  be  successfully 
attacked  by  the  defendant  on  a  motion  to  dissolve  the  at- 
tachment.®''^ Fraud  is  not  inferable  from  the  mere  breach 
of  the  contract.®* 

An  affidavit  stating  that  the  defendant  fraudulently 
contracted  the  debt  or  incurred  the  obligation  respecting 
which  the  suit  is  brought  is  not  invalid  because  of  the  use 
of  the  word  ''or,"  since  the  incurring  of  an  obligation 
under  the  statute  can  be  nothing  other  than  contracting 
an  indebtedness  in  a  case  where  the  suit  is  brought  upon 
a  contract.'® 

§  21.  Allegation  of  non-residence  of  defendant. 

A  person  who  stays  most  of  his  time  in  this  state,  but 
claims  that  his  home  is  in  another  state  from  which  he 

85  Allen  V.  Kinyon,  41  Mich.  281.  88  Powers    v.    O'Brien,    44    Mich. 

86  Hunt    V.    Strew,   39    Mich.    :568,       317. 

and   see    §  14,   ante.  89  Emerson   v.   Detroit   Steel  &  S. 

87  Eatlow  V.  Hanna,  75  Mich.  219 ;       Co.,   100   Mich.   127. 
Feldman  v.  Preston,  194  Mich.  352. 

1  Abbott— 8 


114  Attachment  §  21 

came  and  where  his  wife  lives,  and  where  he  himself  lives 
part  of  the  time,  is  a  non-resident  within  the  meaning  of 
the  statute  relative  to  attachments.^"  It  would  seem  that 
a  change  of  abode  without  the  intention  to  return  con- 
stitutes one  a  non-resident  of  the  place  whence  he  has 
departed.®^  Where  there  were  two  defendants,  an  allega- 
tion that  the  defendants,  naming  them,  ''are  not  residents 
of  the  State  of  Michigan  and  have  not  resided  therein  for 
three  months  immediately  preceding  the  time  of  making 
this  affidavit,"  is  not  subject  to  the  objection  that  it  is 
consistent  with  the  fact  that  either  of  the  defendants  had 
resided  in  Michigan  within  three  months.  This  would  not 
be  a  legitimate  inference  from  the  language  used.®^ 

§  22.  Allegation  that  defendant  is  a  foreign  corpora- 
tion. 

Another  cause  for  the  issue  of  a  writ  of  attachment  is 
that  the  defendant  is  a  foreign  corporation.  A  foreign 
corporation  is  a  corporation  created  by  or  under  the  law^s 
of  another  state,  government  or  country.  An  allegation 
which  avers  that  the  defendant  is  a  corporation  organ- 
ized under  the  laws  of  a  state  or  countiy  and  specifying 
the  state  or  country  is  sufficient. 

§  23.  Statement  where  attachment  merely  because  de- 
fendant domestic  corporation. 

When  a  domestic  corporation  is  proceeded  against  by 
virtue  of  the  statute  which  specially  authorizes  suits  to 
be  begun  by  attachment  against  such  corporations,®^  it  is 
not  a  prerequisite  that  any  of  the  ordinary  grounds  for 
issuing  a  writ  of  attachment  exist.  In  such  case,  the  basis 
for  the  writ  is  merely  the  residence  of  the  plaintiff  in  a 

SOLoder    v.    Littlefield,    39  Mich.  92  Dorr  v.  Clark,  7  Mich.  310. 

512.  93Jud.    Act.    ch.    26,    §3;    Comp. 

91  Drake,     Attachm,     sees.  57-67,      Laws  1915,   §  13030. 
citing  numerous  cases. 


§  24  Attachment  115 

county  other  than  that  in  which  the  principal  office  of  the 
corporation  is  located.  Consequently  this  is  the  only  rea- 
son which  need  be  stated  in  the  affidavit  for  the  issuance 
of  the  writ.®* 

Form  of  Affidavit  to  Be  Annexed  to  Writ  of  Attachment  Against  a 
Domestic  Corporation 

State  of  Michigan, 
County    of 

A.  B.,  being  duly  sworn,  deposes  and  says  that  he  is  the  plaintiff  named 
in  the  annexed  -writ  of  attachment;  that  he  resides  in  said  county;  that  the 
defendant  named  in  said  writ  is  a  corporation  organized  under  the  laws 

of  the  State  of  Michigan  and  has  its  principal  o£Q.ce  in  the  County  of 

(some  county  other  than  that  in  which  the  plaintiff  resides),  in  the  State 
of  Michigan;   that  the  said  defendant  is  indebted  to  the  said  plaintiff  in 

the  sum  of   dollars,  as  near  as  may  be,  over  and  above  all  legal 

set-offs;  and  that  the  said  indebtedness  is  due  upon  contract  (or,  upon  judg- 
ment, or,  upon  decree,  as  the  case  may  be). 

A.  B. 

Subscribed,  etc. 

§  24.  Statement  as  to  parties. 

It  is  the  better  practice  to  name  the  plaintiff  in  the 
affidavit,  but,  inasmuch  as  the  affidavit  may  be  made  at 
the  same  time  that  the  writ  is  issued  and  must  always  be 
annexed  to  the  writ  before  the  writ  passes  from  the  hands 
of  the  clerk  of  the  court,  a  description  of  the  plaintiff  as 
**the  plaintiff  named  in  the  annexed  writ  of  attachment" 
is  a  sufficient  identification.®^  If  there  be  more  than  one 
plaintiff,  the  names  of  all  of  them  should  be  stated  in  the 
affidavit,  and  in  the  case  of  several  plaintiffs  who  are  co- 
partners, it  is  insufficient  to  designate  them  merely  by 
their  firm  name.®^    If  the  plaintiff  be  a  corporation,  the 

MGraecen  v.  Buckley  &  Douglass  euch  case  being  filed  instead  of  an- 

Lumber  Co.,  167  Mich.  569.  nexed  to  the  writ.     Burnside  v.  Da- 

06  Stringer  v.  Dean,  61  Mich.  196.  vis,  65  Mich.  74 ;   Jud.  Act,  eh.  75, 

The  rule  is  different  in  affidavits  §  1 ;    Oomp.   Laws   1915,  §  14337. 

for  writs  of  attachment  to  issue  out  96  Barber  v.  Smith,  41  Mich.  138 

of   justice's  court,   the   affidavit  in 


116  Attachment  v^  24 

general  allegation  that  it  is  a  corporation  under  the  laws 
of  the  state  is  sufficient.®'' 

Stating  that  defendant  is  indebted  to  "deponent,"  in- 
stead of  to  the  ''plaintiff,"  makes  the  affidavit  jurisdic- 
tionally  defective.®*  But  a  defect  in  the  affidavit  in  in- 
cluding in  the  description  of  defendant  firm  the  name  of  a 
person  wlio  did  not  exist  does  not  render  the  attachment 
proceeding  void.®® 

§25.  Title. 

The  affidavit  for  a  writ  of  attachment  by  which  a  suit 
is  commenced  should  not  be  entitled  in  the  cause,  for  the 
reason  that,  at  the  time  the  affidavit  is  made,  there  is  no 
suit  pending.^  An  affidavit  entitled  in  a  suit  which  is  not 
pending  would  be  a  nullity.^ 

§  26.  Time  for  making. 

To  obviate  an  early  holding  that  the  affidavit  must  be 
made  on  the  day  the  writ  is  issued,^  it  is  provided  by  stat- 
ute that  the  affidavit  will  not  be  insufficient  by  reason  of 
the  intervention  of  a  day  between  the  date  of  the  jurat 
to  the  affidavit  and  the  issuing  of  the  writ;  and  when  the 
person  making  the  affidavit  resides  in  any  county  in  the 
state  other  than  that  in  which  the  writ  of  attachment  is  to 
issue,  one  day's  time  for  every  thirty  miles  travel  by  the 
usual  post  route  from  the  residence  of  such  person  to  the 
l)lace  from  which  the  writ  is  to  issue,  is  allowed  between 
the  date  of  the  jurat  and  the  issuing  of  the  writ,  and  Sun- 
days and  legal  holidays  are  not  counted  as  intervening 

97  Palmiter     v.     Pere     Marquette  King  v.  Harrington,  14  Mich.  532. 
Lumber  Co.,  31  Mich.  183.  2  Becbe  v.  Morrell,  76  Mich.  114. 

98  Butcher    v.    Cappon    &    Bertsch  If  suit  is  pending,  absence  of  title 
Leather  Co.,  148  Mich.  552.  is   not   fatal   where   affidavit   la   an- 

99  Belcher-Stine     Lumber     Co.     v.  nexed  to  writ.     Beebe  v.  Morrell,  76 
Burns,  159  Mich.  466.  Mich.  114. 

1  Beebe  v.  Morrell,  76  Mich.  114;  3  Wilson  v.  Arnold,  5  Mich.  98. 

Whipple   V.   Williams,   1   Mich.   115; 


^  28  '  Attachment  117 

days.*  The  time  does  not  begin  to  run  until  the  exi)ira- 
tion  of  the  day  upon  which  the  affidavit  is  executed,  and 
the  writ  may  issue  upon  the  day  next  after  the  interven- 
ing day  or  days  specified  in  the  statute.* 

§  27.  Who  may  make. 

The  affidavit  may  be  made  either  by  the  plaintiff  or  by 
some  person  in  his  behalf,^  and  it  is  essential  that  it 
should  appear  upon  the  face  of  the  affidavit  that  it  was  so 
made.''  But  if  the  affidavit  states  that  the  affiant  is  the 
agent  or  attorney  of  the  plaintiff,  the  agency  is  sufficiently 
averred,'  and  it  need  not  also  state  that  the  affidavit  is 
made  in  the  plaintiff's  behalf,^  this  being  the  legal  infer- 
ence. 

§  28.  Amendment  of  affidavit. 

There  is  no  statute  now  in  force  specially  permitting 
amendments  to  attachment  affidavits,  and  such  amend- 
ments have  never  been  deemed  proper  under  the  general 
statutes.^®  The  rule  seems  to  be  that  they  are  not  amend- 
able in  matters  of  substance.  But  in  some  cases  of  defects 
merely  formal,  and  not  amounting  to  substantial  or  juris- 
dictional defects,  an  amendment  has  been  permitted. 
Thus,  where  the  plaintiffs  were  a  co-partnership  and  the 
affidavit  was  attacked  on  the  ground  that  it  gave  only  the 
firm  name  and  not  the  names  of  the  members  of  the  firm, 
it  was  held  that  it  might  be  amended  in  this  respect  in 
cases  where,  by  other  means,  the  real  phiintiffs  were  suffi- 
ciently denoted." 

4Jud.    Act,    ch.    26,    §2;     Comp.  Wethorwax   v.    Paine,   2   Mich.   555; 

Laws  1915,   §  13029.  Nicolls   v.   Lawrence,   30   Mich.   395. 

6  Horton  v.  Monroe,  98  Mich.  195.  »  Stringer   v.  Dean,  61   Mich.  196. 
6Jud.    Act,    ch.    26,    §2;     Comp.  10  Freer  v.  White,  91  Mich.  74. 

Laws  1915,  §  13029.  "  Emerson   v.  Detroit   Steel   &   S. 

7  Borland  v.  Kingsbury,  65  Mich.  Co.,  100  Mich.  127;  Barber  v.  Smith. 
59.  41    Mich.    138. 

8  Adams  v.  Kellogg,  63  Mich.  105; 


118  Attachment  §  28 

If  the  affidavit  is  not  a  nullity  but  is  merely  defective, 
a  new  affidavit  cannot  be  filed.^^ 

V.  Writ,  Service,  Levy,  Lien  and  Sale 

§  29.  Issuance  and  when  returnable. 

Writs  of  attachment  may  be  issued  in  vacation  or  in 
term  time,  and  may  be  made  returnable  at  any  time,  ex- 
cept Sunday,  not  exceeding  three  months  from  the  date 
when  issued. ■^^  The  affidavit  must  be  attached  to  the  writ 
when  served.'^* 

An  alias  writ  may  issue,^^  and  no  new  affidavit  is  re- 
quired to  support  an  alias  or  pluries  writ  of  attachment 
where  the  property  has  been  seized  under  the  original 
writ,  and  the  further  writ  is  desired  merely  to  serve  the 
purposes  of  a  summons.^^ 

§  30.  Form  and  contents. 

The  writ  notifies  the  defendant  to  appear,  in  person  or 
by  attorney,  within  fifteen  days  after  service  of  the  writ 
upon  him,  to  answer  to  the  suit  of  the  plaintiff  according 
to  the  rules  and  practice  of  the  court,  and  commands  the 
sheriff  or  other  officer  to  whom  it  is  directed  that  he  do 
forthwith,  and  on  or  before  the  return  day  mentioned  in 
the  writ,  attach  so  much  of  the  lands,  tenements,  goods, 
chattels,  moneys  and  effects  of  the  defendant,  not  exempt 
from  execution,  wheresoever  the  same  may  be  found 
within  his  county,  as  will  be  sufficient  to  satisfy  the  de- 
mand of  the  plaintiff,  and  that  he  make  an  inventory 
thereof,  and  safely  keep  said  property  to  satisfy  any 

12  Greenvault  v.  Farmers '  &  Me-  14  Yale    State    Bank    v.    Fletcher, 

chanics'  Bank,  2  Doug.  498.  173  Mich.  585;  Holmes  v.  King,  158 

laCir.  Ct.  Rule  18;   Jud.  Act,  ch.  Mich.   445. 

26,  §  6;  Comp.  Laws  1915,  §  13033.  15  Van    Benschoten   v.    Fales,    126 

If  the  year  for  the  return  is  not  Mich.  176.    See  also  Commencement 

stated,  the  current  year  is  presumed  of  Actions. 

to  be  the  one  referred  to.     Nash  v.  16  Van   Benschoten   v.   Fales,    126 

Mallory,  17  Mich.  282.  Mich.   176. 


§  30  Attachment  119 

judgment  that  may  be  recovered  by  the  plaintiff;  and 
that  he  serve  a  copy  of  the  writ  and  a  copy  of  the  inven- 
tory, certified  by  him,  upon  the  defendant,  if  he  can  be 
found  in  his  county.  It  further  commands  that,  in  case 
he  shall  seize  any  property  of  the  defendant  in  said  coun- 
ty, but  not  sufficient  to  satisfy  the  demand  of  the  plaintiff 
and  costs,  he  shall  seize  other  property  of  the  defendant 
subject  to  attachment,  sufficient,  with  that  seized  within 
said  county,  to  satisfy  said  demand  and  costs,  wherever 
the  same  may  be  found  within  the  state,  and  that  he  serve 
a  copy  of  the  writ  and  a  certified  copy  of  the  inventory 
upon  the  defendant,  if  found  within  either  county  where 
property  has  been  seized  under  the  writ.^'  Writs  of  at- 
tachment must  be  styled  "In  the  Name  of  the  People  of 
the  State  of  Michigan."  They  should  be  tested  in  the 
name  of  one  of  the  judges  of  the  court  out  of  which  they 
issue,  be  sealed  with  the  seal  of  such  court  and  signed  by 
the  clerk  thereof.  Before  the  delivery  of  a  writ  of  at- 
tachment to  an  officer  to  be  executed,  it  should  be  sub- 
scribed or  indorsed  with  the  name  of  the  attorney  and  the 
officer  by  whom  it  is  issued."  The  attorney  should  add 
his  business  address  to  his  name  upon  the  writ,  so  as  to 
inform  the  adverse  party  how  to  make  service  of  papers 
in  the  subsequent  progress  of  the  suit.^® 

A  writ  commanding  the  sheriff  to  serve  a  certified  copy 
of  the  writ  and  attachment  on  defendant  if  he  can  be 
found  "in  either  county  where  property  has  been  seized 
under  the  writ"  is  not  invalid  for  failure  to  command 
service  in  the  county  where  the  writ  issues  if  defendant 
can  there  be  found.^°  The  names  of  the  plaintiffs  must 
be  stated  with  certainty,  in  the  writ.    A  co-partnership 

ITJud.    Act,    ch.    26,    §6;    Comp.  18  Jud.    Act,    ch.    13,    §2;    Comp. 

Laws   1915,    §13033;    Cir.   Ct.   Rule  Laws  1915,  §12405. 

18,  subd.  5.  19  Cir.    a.    Rule    18;     Skeels    v. 

Form  of  writ  where  action  com-  Oceana    Circuit    Judge,    119    Mich, 

menced  by  summons  or  declaration,  290. 

see   §  7,  ante.                                •  20  Barber  v.  Smith,  41  Mich.  138. 


120  Attachment  §  30 

name  is  not  sufficient,  but  the  defect  is  amendable.^^  But 
a  misnomer  consisting  only  of  an  error  in  the  Christian 
name  of  one  of  defendant  firm  does  not  make  the  writ 
void,  the  parties  being  sufficiently  identified. 

Form  of  Writ 
To  the  form  for  summons  (see  Commencement  of  Actions,  subd.  II)  add, 
before  the  testing  clause,  the  following: 

To  the  Sheriff  of  said  County: 

We  command  you  that  you  do  forthwith,  and  on  or  before  the  return  day 
above  mentioned,  attach  so  much  of  the  lands,  tenements,  goods,  chattels, 
moneys,  and  effects  of  the  said  defendant,  C.  D.,  not  exempt  from  execution, 
wheresoever  the  same  may  be  found  within  said  county,  as  will  be  sufScient 
to  satisfy  the  demand  of  said  plaintiff,  and  that  you  make  an  inventory 
thereof,  and  safely  keep  said  property  to  satisfy  any  judgment  that  may  be 
recovered  by  said  plaintiff;  and  that  you  sene  a  copy  of  this  writ  and  a 
co£2_of_such_Jriventory,  certified  by  you,  upon  the  said  defendant,  if  he  can 
be   found  in  said   county. 

And,  in  case  you  shall  seize  any  property  of  said  defendant  in  said  county, 
but  not  sufficient  to  satisfy  the  demand  of  said  plaintiff,  and  costs,  then 
you  are  hereby  further  commanded  to  seize  other  property  of  said  defend- 
ant, subject  to  attachment,  sufficient,  with  that  seized  within  said  county, 
to  satisfy  said  demand  and  costs,  wherever  the  same  may  be  foinul  within 
the  state,  and  to  serve  a  copy  of  this  writ  and  a  certified  copy  of  your  in 
ventory  upon  said  defendant,  if  found  within  either  county  where  property 
has  been  seized  under  this  writ. 

§  31.  Indorsement  as  security  for  costs. 

The  Judicature  Act  provides  that  writs  of  attachment 
''shall  be  indorsed  in  the  same  cases,  and  in  the  same 
manner,  as  original  writs  are  required  by  law  to  be  in- 
dorsed, by  some  person  as  security  for  costs,  and  with  tlie 
like  effect.'"^''  The  retention  of  this  provision  in  the 
Judicature  Act  is  undoubtedly  an  oversight,  since 
the  provision  as  to  such  indorsements  in  case  of  original 
writs  was  repealed  by  the  Judicature  Act. 

§  32.  Execution  of  writ. 

The  statute  provides  that  the  sheriff  or  other  officer  to 
whom  the  wiit  is  directed  and  delivered,  must  execute  the 

21  Van   Benschoten   v.   Falea,    126  22Jud.    Act,    ch.    26,    §4;    Comp. 

Mich.  176.  Laws  1915,  §  13031. 


i$  33  Attachment  121 

same  on  or  before  the  return  day  thereof,  (1)  by  seizini>: 
so  much  of  the  lands,  tenements,  goods,  chattels,  moneys 
and  effects  of  the  defendant,  wherever  they  may  be  found 
in  his  county,  as  will  be  sufficient  to  satisfy  the  demand 
and  costs,  and  (2)  by  making  an  inventoiy  thereof,  and 
(3)  serving  a  copy  of  such  attachment  and  inventory, 
certified  by  him,  upon  the  defendant,  if  he  can  be  found 
within  the  county.^^  Service  of  an  attachment  writ  can- 
not be  made  on  an  agent  where  there  is  no  showing  that 
the  attachment  defendant  cannot  be  found.^*  Merely 
clerical  errors  or  omissions  in  the  original  writ  or  the 
copy  are  usually  not  fatal.^^  The  officer  cannot  lawfully 
break  into  a  locked  house  to  make  the  levy.^^ 

If  a  resident  sues  a  foreign  corporation  and  commences 
his  action  by  attachment,  service  of  a  copy  of  the  writ  and 
inventory  may  be  made  ' '  on  any  officer,  member,  clerk  or 
agent  of  such  corporation  within  this  state."" 

§33.  Appraisal. 

When  property  has  been  attached,  the  officer  must 
cause  it  to  be  appraised  by  two  disinterested  freeholders 
of  the  county  in  which  it  was  seized.^^    Before  acting,  the 

23Jnd.    Act,    ch.    26,    §8;    Comp.  v.  J.  L.  Owens  Co.,  158  Mich.  321. 

Laws   1915,    §13035;    Cir.   Ct.  Rule  28  Jud.    Act,    ch.    26,    §9;    Comp. 

18,   §  5.  Laws  1915,  §  13036. 

24  Craig  V.  Brown,  169  Mich.  161,  See  Exemptions,  as  to  inventory 
following  and  approving  Eeynolds  v.  and  appraisal  when  the  property  be- 
Marquette  Circuit  Judge,  125  Mich.  longs  to  a  class  or  species  in  which 
445.  See  also  Pepin  v.  Nault,  149  exemptions  are  allowed  by  law. 
Mich.  180;  White  v.  Prior,  88  Mich.  The  statutory  provision  has  the 
647.  interest  of  the  defendant  in  attach- 

25  Lyon  v.  Baldwin,  194  Midi.  ment  particularly  in  view,  and  it 
118;  Millard  v.  Lenawee  Circuit  requires  disinterested  freeholders 
Judge,  107  Mich.  134;  Merrick  v.  for  his  protection.  He  cannot  ob- 
Mayhue,  40  Mich.  196.  ject  that  they  were  members  of  his 

26  Bailey  v.  Wright,  39  Mich.  96.  own     family.      Cover     v.     Buck,    34 

27  Jud.    Act,   ch.   26,    §  43 ;    Comp.  Mich.   519. 

Laws  1915,   §  13070.  A   freeholder   is   one   in   whom    is 

Service  on  resident  agent  confers  vested  an  estate  of  inheritance  or 
jurisdiction    in    personam.     Showen      for  life. 


122  Attachment  §  33 

appraisers  must  be  sworn  by  the  officer  to  make  a  tnie 
appraisement.  The  appraisement,  when  made,  must  be 
signed  by  the  appraisers  and  returned  with  the  writ.^^ 
The  statute  requires  the  appraisement  to  be  made  regard- 
less of  whether  the  property  attached  is  subject  to  an 
exemption. 

The  clerk  of  the  court  is  qualified  to  act  as  appraiser  of 
attached  property.^** 

In  case  of  several  attachments  of  the  same  property, 
one  inventory  and  appraisal  is  sufficient,  and  a  subsequent 
attachment  may  be  sei'ved  on  the  property  as  in  the  hands 
of  the  officer  by  reference  to  the  inventory  and  appraisal 
under  the  first  writ.'^ 

Form  of  Oath  of  Appraisers 

You  do  solemnly  swear  that  you  will,  according  to  your  best  judgment, 
make  a  true  appraisement  of  all  the  property  seized  by  me,  by  virtue  of  an 
attachment  now  in  my  hands,  issued  out  of  the  circuit  court  for  the  county 

of ,  at  the  suit  of  A.  B.,  plaintiff,  against  the  lands,  tenements,  goods, 

chattels,  moneys,  and  effects  of  C.  D.,  defendant.     So  help  you  God. 

Form  of  Appraisement  of  Property  Attached 

State  of  Michigan,  ) 
County    of C 

We,  the  undersigned,  disinterested  freeholders  of  the  County  of   

aforesaid,  having  been  first  duly  sworn  by  the  sheriff  of  the  County  of 

to  make  a  true  appraisement  of  all  the  property  seized  by  him  by 

virtue  of  the  annexed  writ  of  attachment,  do  appraise  the  several  articles 
and  parcels  of  property  so  attached  at  the  respective  sums  and  amounts  set 
opposite  thereto  in  the  inventory  thereof,  hereto  annexed,  the  aggregate 
amount  being  the  sum  of dollars. 

Dated,  etc.  E.  P., 

G.  H., 
Appraisers. 

29  Jud.    Act,    ch.    26,    §  9 ;    Comp.  be    paid    on    the    rendition    of    the 

Laws  1915,  §13036.  services.      Jud.    Act,    ch.    26,    §14; 

The  appraisers   are  each   entitled  Comp.  Laws  1915,  §  13041. 

to  receive  a  fee  of  two  dollars  for  30  De  Carie   v.  Marks,   171   Mich, 

each   day   and   one  dollar   for   each  167. 

half    day    necessarily    occupied    by  31  Jud.    Act,    ch.    26,    §9;    Comp. 

them    in    appraisal,    and    six    cents  Laws  1915,   §  13036. 
per  mile  for  traveling  one  way,  to 


§  35  Attachment  123 

§34.  Inventory. 

The  officer  executing  the  writ  must  make  an  inventory 
of  the  property  attached  and  serve  a  copy  of  such  inven- 
tory on  the  defendant  if  he  can  be  found,  but  if  there  are 
several  attachments  of  the  same  property  only  one  in- 
ventory need  be  made.^^  The  inventory  is  not  too  un- 
certain because  it  omits  the  county  and  state,  where  the 
accompanying  certificate  of  the  officer  remedies  the 
defect.^^ 

Service  of  a  certified  copy  of  the  inventory  has  been 
held  a  jurisdictional  prerequisite,'*  although  the  better 
rule  seems  to  be  that  the  fact  the  copy  served  is  not  certi- 
fied is  not  fatal.®*^  And  service  of  a  copy  of  the  inventory 
by  an  officer  other  than  the  one  levying  the  attachment 
does  not  confer  jurisdiction.'® 

Form  of  Inventory 

State   of  Michigan,  | 
County    of f 

By  virtue  of  the  annexed  writ,  to  me  directed  and  delivered,  I  have  this 
day  taken  the  property  and  the  effects  of  which  the  following  is  an  inven- 
tory, that  is  to  say:     (Describe  the  property.) 
Dated,  etc. 

S.  T., 
Sheriff. 

§35.  Effect  of  failure  to  serve  ** certified"  copy  of 

writ  and  inventory. 

The  i^le  of  court  which  governs  requires,  it  seems,  a 
certified  copy  of  both  the  writ  and  inventory  to  be  served 

32  Jud.  Act,  ch.  26,  §  8 ;  Comp.  ventory  is  required  to  be  served 
Laws  1915,  §13035;  Cir.  Ct.  Rule  where  there  are  several  attachments 
18,  §  5.  upon  the  same  property,  yet  a  copy 

33  John  D.  Gruber  Co.  v.  Mont-  of  the  attachment  must  in  all  cases 
calm  Circuit  Judge,  183  Mich.  477.  be    served    upon    the    defendant,    if 

84  White  V.  Prior,  88  Mich.  647;  found.     Stearns  v.  Taylor,  27  Mich. 

Langtry   v.   Wayne    Circuit   Judges,  88. 

68  Mich.  451.     See  Stearns  v.  Tay-  86  See  §  35,  post, 

lor,    27    Mich.    88.  86  Gary  v.  Everett,  107  Mich.  654. 

Although  but  one  copy  of  the  in- 


124  Attachment  §  35 

where  service  is  within  the  county,  but  if  service  is  after 
a  second  seizure  outside  the  county,  the  copy  of  the  in- 
ventory served  must  be  certified  while  the  copy  of  the 
writ  is  not  required  to  be  certified.^'  On  the  other  hand, 
the  governing  statute  seems,  to  be  the  same  as  the  rule  of 
court  except  that  nothing  is  said  as  to  the  copy  of  the  at- 
tachment and  inventory  being  certified  where  the  prop- 
erty seized  in  the  county  is  not  sufficient  and  it  is  neces- 
sary thereafter  to  seize  property  outside  the  county  and 
serve  a  copy  of  the  writ  and  inventory  on  the  defendant.'* 
It  has  been  held  that  the  fact  that  the  copy  of  the  attach- 
ment writ  and  inventory  served  on  defendant  was  not 
certified  to  by  the  sheritf  is  not  fatal.'*  At  any  event,  the 
service  of  a  true,  but  not  certified,  copy  of  the  writ  with  a 
certified  copy  of  the  inventoiy  is  not  fatally  defective  by 
reason  of  the  omission  of  the  certificate  to  the  copy  of  the 
writ.*"  However,  the  service  of  a  copy  of  the  inventory 
alone  without  a  copy  of  the  writ  does  not  constitute  a 
valid  personal  service  of  the  attachment.*^ 

§  36.  Service  of  writ  where  defendant  not  found  in 

county  where  property  seized. 
In  case  any  defendant  is  not  found  in  any  county  where 
pro])erty  has  been  seized,  service  of  the  writ  on  him  may 
be  made  in  any  county  within  this  state  by  the  sheriff  of 
the  county  wherein  such  defendant  may  be.*^ 

§  37.  — -  Where  property  may  be  seized. 

A  writ  of  attachment  commands  the  officer  to  whom  it 
is  directed  and  delivered  to  attach  so  much  of  the  lands, 

37Cir.  Ct.  Rule  18,  §5.  167;    Rameau  v.  Valley,   168  Mich. 

88Jud.    Act,    ch.    26,    §8;    Comp.  569. 

Laws  1915,  §13035;    Skeels  v.  Oce-  «  Stearns  v.  Taylor,  27  Mich.  88; 

ana  Circuit  Judge,  119  Mich.  290.  McGuire    v.    McKnight,    101     Mich. 

89  De   Carie   v.   Marks,   171   Mich.  275. 

167;  Leonard  V.  Woodward,  34  Mich.  42  Jud.    Act,    eh.    26.    §8;    Comp. 

514.  Laws   1915,   S  ^■.W?,r,. 

40  Dp   Carie   v.   Mark.s,   171    Mich. 


^  38  Attachment  125 

tenements,  g-oods,  chattels,  moneys  and  effects  of  the  de- 
fendant, not  exempt  from  execution,  wheresoever  the 
same  ma.y  be  found  in  the  county  where  the  writ  issues, 
as  will  be  sufficient  to  satisfy  the  demand  of  the  plaintiff, 
and  in  case  property  of  the  defendant  is  seized  in  such 
county,  but  not  sufficient  to  satisfy  the  demand  of  the 
plaintiff  and  costs,  then  the  writ  further  commands  the 
officer  to  seize  other  property  of  the  defendant  subject  to 
attachment,  sufficient,  with  that  seized  within  such  coun- 
ty, to  satisfy  such  demand  and  costs,  wheresoever  the 
same  may  be  found  within  the  state.*^  The  terms  of  the 
writ  relative  to  the  place  where  property  may  be  seized 
must  be  strictly  observed.  The  law  permits  property  to 
be  attached  in  a  foreign  county  only  after  property  has 
been  attached  in  the  county  where  the  writ  issues.** 

§  38.  Mode  of  levying  on  real  estate  and  effect  thereof. 

In-attaching  real  estate  or  any  right  or  interest  in  land, 
it  is  not  necessary  that  the  officer  enter  upon  tlie  land  or 
be  within  view  of  it,*^  but  the  real  estate  is  bound  by  the 
attachment,  and  the  attachment  is  a  lien  thereon,  from 
the  time  when  a  certified  copy  of  the  attachment,  with  a 
description  of  the  real  estate  attached,  is  deposited  in  the 
office  of  the  register  of  deeds  of  the  county  wliere  the  real 
estate  is  situated.*®    The  deposit  of  the  certified  copy  does 

43  Cir.  Ct.  Rule  18;   Jud.  Act,  ch.  county     wlu'ri'     iiroporty     lias     been 

26,   §8;    Conip.  Laws  1915,   §13035.  seized    under    this    writ.      Jud.    Act, 

In   case   any   property   of   the   de-  <  h.     26,     §8;     Comp.     Laws     19L5, 

fendant  is  found  and  seized  but  not  §  13035. 

sufficient  to  satisfy  the  demand  and  44  Stearns  v.  Taylor,  27  Mich.  28. 

costs,    then    said    officer    shall    seize  45  Jud.   Act,  ch.   26,    §10;    Comp. 

other    property    of    the    defendant,  Laws  1915,  S  1^5037. 

subject  to  attachment,  sufficient  with  46  Jud.   At,  eh.   26,    S12;    Comp. 

that  seized  within  his  county  to  sat-  Laws  1915,   >   13039.  If  any  real  ea- 

isfy  the  demand  and  costs,  wherever  tate   attached  is  subject  to  a  niort 

the  same  may   be   found   within   the  gage  or  other  incumbrance,  and  tht 

State,  and  shall  serve  a  copy  of  such  niortgay;e  is  redeemod  or  the  incum 

attachment  aM<l   inventory  upon  said  brance   removed    before   the   sale   on 

defendant,    if    found     within    either  exec\itioii,    the    real    estate    may    b« 


126  Attachment  §  38 

not  constitute  notice  to  third  parties,*''  but  is  required  as 
a  condition  precedent  to  the  establishment  of  the  attach- 
ment lien,  even  as  between  the  parties  to  the  suit."  The 
levy  of  an  attachment  upon  real  estate  does  not  dispossess 
the  defendant  of  his  land." 

When  such  certified  copy  and  such  description  are  so 
deposited,  it  is  the  duty  of  the  register  of  deeds  to  note 
upon  the  copy  the  day,  hour  and  minute  when  he  receives 
it;  also  to  enter,  in  a  book  to  be  kept  by  him  for  that  pur- 
pose, the  names  of  the  parties  in  such  writ,  designating 
who  is  plaintiff  and  who  defendant,  the  time  when  the 
land  was  attached,  a  correct  description  of  the  land  and 
the  time  when  such  copy  was  deposited.®" 

Form  of  Certificate  Upon  Copy  of  Attachment,  to  Be  Deposited  with 

Register  of  Deeds 
State  of  Michigan,  ) 
County    of ( 

I  hereby  certify  that  the  within  is  a  true  copy  of  a  writ  of  attachment,  to 

me  directed  and  delivered,  by  virtue  of  which  I  did,  on  the day  of 

,  A.  D ,  attach  the  following  described  real  estate,  situated  in 

the  county  of ,  to  wit:     (Describe  the  lands.) 

Dated,  etc.  8.  T., 

Sheriff. 

§39.  Mode  of  levying  on  personal  property  and  effect 
thereof. 

An  attachment  binds  goods  and  chattels  from  the  time 
they  are  attached.®^    Generally,  all  that  is  required  is  that 

sold  on  execution  in  the  same  man-  The  register  of  deeds  is  entitled 

ner  and  with  the  same  effect  as  if  to  a  fee  of  twenty-five  cents  for  his 

the  mortgage  or  other  incumbrance  services  in  each  case,  to  be  paid  on 

had    never    existed.      Jud.    Act,    ch.  the    delivery    of    such    copy.      Jud. 

26,  §  34;  Comp.  Laws  1915,  §  13061.  Act,  eh.  26,  §  14;  Comp.  Laws  1915, 

47  French    v.    De    Bow,    38    Mich.  §13041. 

708.  BlJud.  Act,  ch,   26,   §11;    Comp. 

48  Davis  Sewing  Machine  Co.  v.  Laws  1915,  §  13038.  See  Hinch- 
Whitney,  61  Mich.  518.  man  v.  Town,  10  Mich.  508. 

49  Smith  v.  Collins,  41  Mich.  173. 

50  Jud.   Act,   ch.   26,    §  13 ;    Comp, 
Laws  1915,   §13040. 


§  40  Attachment  127 

the  property  be  present  before  the  officer,  subject  to  his 
control,  and  that  he  openly  state  that  he  levies  upon  it. 
He  must,  however,  not  only  perform  some  act  which  indi- 
cates an  intention  to  seize  the  property,  but  he  must  re- 
duce the  property  to  his  possession,  or  at  least  bring  it 
within  his  immediate  control.  A  '^pen  and  ink"  levy  is 
not  sufficient.  He  must  do  some  act  which,  if  not  pro- 
tected by  the  writ,  would  make  him  a  trespasser.^^  But 
the  only  seizure  required  is  such  as  the  property  is  sus- 
ceptible of,  and  where  a  levy  is  made  upon  a  growing 
crop,  a  constructive  possession  is  all  that  is  necessary.^^ 
It  is  not  essential  to  a  valid  levy  that  the  officer  should 
indorse  the  levy  upon  his  writ,  as  his  return  to  the  writ, 
stating  the  fact  of  a  levy,  would  be  sufficient."  Where 
machinery  bolted  to  the  freehold  is  attached,  it  need  not 
be  detached  and  removed.^^ 

Th.e  mode  of  levying  upon  property  belonging  to  a 
class  or  species  in  which  exemptions  are  allowed  by  law 
is  governed  by  the  same  rules  applicable  to  a  levy  under 
an  execution  on  such  property.^^ 

§  40.  Property  subject  to  levy. 

The  general  rule  is  that  any  property  that  may  be 
levied  upon  by  execution  is  also  subject  to  attachment." 
For  this  reason,  the  question  of  what  property  may  be  at- 
tached is  treated  of  together  with  the  question  of  what 
property  is  subject  to  execution  under  the  article  on 
Executions. 

The  property  exempt  from  attachment  by  statute  is 
the  same  as  is  exempt  by  statute  from  execution.*^^ 

62  Chittenden  v.  Eogers,  42  111.  56  See  Executions;  Exemptions. 
105.  67Jud.    Act,    ch.    26,    §6;    Comp. 

63  Grover  V.  Buck,  34  Mich.  519.  Laws  1915,   §13033;   King  v.  Hub- 

64  Grover  v.  Buck,  34  Mich.  519.  bell,  42  Mich.  597. 

65  Patch  V.  Weasels,  46  Mich  249.  68  See   Exemptions. 


12S  Attachment  §41 

§  41.  Priority  of  and  between  attachments. 

In  nearly  all  of  the  states,  the  rule  is  that  several  at- 
tachments against  the  property  of  the  same  person  take 
precedence  in  the  order  in  which,  in  point  of  time,  they 
have  been  levied  upon  the  property;  and  in  some  states 
the  first  attachment  holds  the  property,  not  to  the  exclu- 
sion of  the  others,  but  for  the  benefit  of  all  the  creditors 
of  the  defendant  who  come  in  and  prove  their  demands 
and  thereby  become  entitled  to  share  with  the  first  at- 
tacher  the  avails  of  his  diligence.^^  In  this  state,  if  there 
are  several  attachments,  or  one  or  more  executions  and 
one  or  more  attachments,  against  the  property  of  the 
same  person,  the  general  rule  is  that  the  writs  take  pre- 
cedence in  the  order  in  which  they  have  been  delivered  to 
the  officer  to  be  executed,  irrespective  of  the  order  in 
which  levies  have  been  made  under  the  various  writs. 
But  if  a  levy  and  sale  of  any  goods  or  chattels  have  been 
made  under  an  execution  before  an  actual  levy  under 
another  writ,  such  goods  or  chattels  cannot  be  levied  upon 
under  such  writ,  even  though  it  may  have  been  earlier 
delivered  to  the  officer.  An  exception  to  this  general  rule 
is  made  in  the  case  of  an  execution  or  attachment  issued 
out  of  any  court  not  being  a  court  of  record.  In  such  case, 
the  statute  provides  that  such  execution  or  attachment, 
if  actually  levied,  shall  have  preference  over  any  other 
execution  or  attachment  issued  out  of  any  court,  whether 
of  record  or  not,  which  shall  not  have  been  previously 
levied.^" 

It  is  not  to  be  understood  from  what  has  just  been  said 
that  an  attachment  binds  the  property  simply  by  being 
delivered  to  an  officer  to  be  executed.  As  has  been  stated, 
personal  proj^erty  is  bound  by  an  attachment  from  the 
time  of  the  levy  thereon,  and  realty  from  the  time  a  certi- 
fied copy  of  the  attachment  is  deposited  with  the  register 

59  Drake,  Attaehin.  sec.  260.  §§7-9;  Comp.  Laws  1915,  §§12822- 

60  Adapted  from  Jiid.  Act,  ch.  2.'?,      12824. 


§  42  Attachment  129 

of  deeds  of  the  county  where  the  land  is  situated;  but 
when  property  is  bound  by  several  attachments,  the  prior- 
ity of  them  is  governed,  as  a  general  rule  and  aside  from 
those  issued  out  of  courts  not  of  record,  not  by  the  order 
in  point  of  time  in  which  they  have  been  levied,  but  by 
that  in  which  they  have  been  delivered  to  an  officer  to  be 
executed,  so  that  the  attachment  first  delivered  takes  pre- 
cedence of  any  other,  although  the  latter  may  have  been 
levied  first. 

The  attachment  lien  is  not  entitled  to  priority  over  an 
unrecorded  mortgage,^^  and  a  levy  on  real  estate  does  not 
place  the  creditor  in  the  position  of  a  purchaser,  within 
the  registry  laws.®^  Where  a  chattel  mortgage  is  void  as 
against  creditors,  it  is  immaterial  that  the  mortgagee  had 
taken  possession  before  the  attachment  was  levied.^^  So 
where  chattel-mortgaged  property  is  attached,  the  sheriff 
may  be  disturbed  in  his  possession  before  an  inventory  is 
completed.^* 

§  42.  Right  of  officer  to  indemnity. 

The  statute  provides  that  whenever  there  is  any  rea- 
sonable doubt  as  to  the  ownership  by  a  judgment  debtor 
of  any  goods  or  chattels  or  as  to  their  liability  to  be  taken 
upon  an  execution,  the  officer  holding  such  execution  may 
require  of  the  judgment  creditor  sufficient  security  to 
indemnify  him  for  taking  such  goods  and  chattels  there- 
on, and  if  such  security  be  refused,  the  officer  will  not  be 
liable  for  omitting  to  take  such  goods  or  chattels.^*  It 
has  been  held  that  the  same  principle  must  extend  to  at- 
tachments, and  that  although,  where  a  writ  of  attach- 

61  Campbell    v.    Keys,    130    Mich.  64  Merrill    v.    Denton,    73    Mich. 
127.                                                                634,  followed  in  Rosenfield  v.  Case, 

62  Millar  v.  Babcock,  25  Mich.  137.      87  Mich.  295. 

63Wallen    v.    Rossman,    45    Mich.  66  Jud.   Act,  ch.   23,   §18;    Comp. 

333.     Compare  Kratzmer  v.  Detroit      Laws  1915,   §  12833. 
Lumber  Co.,  195  Mich,  370. 
1  Abbott— 9 


130  Attachment  §  42 

ment  is  placed  in  the  hands  of  a  sheriff,  he  is  ordinarilj'" 
bound  to  execute  it  at  his  peril,  yet,  if,  in  his  search  for 
property,  he  has  notice  of  adverse  claims  to  such  as  may 
be  found  or  pointed  out  or  reasonable  doubt  of  the 
debtor's  title,  he  has  the  right  to  demand  indemnity  be- 
fore proceeding  to  the  execution  of  the  writ,  and  he  is  not 
bound  to  seize  property  because  directed  to  do  so,  if  he 
knows  it  to  belong  to  another  than  the  debtor  or  if  he 
reasonably  and  in  good  faith  apprehends  that  a  para- 
mount title  exists  in  another.^® 

§  43.  Sale  of  perishable  property  attached. 

When  any  property  taken  in  attachment  consists  of 
animals  or  perishable  property,  the  court  or  any  judge 
thereof  may  make  an  order  directing  such  property  to  be 
sold  and  the  money  arising  from  the  sale  to  be  brought 
into  court  to  abide  the  order  of  the  court.^'  It  has  been 
held  that  lumber  and  shingles  are  not  ''perishable  prop- 
erty," although  they  are  so  situated  as  to  be  liable  to 
fire.^' 

Upon  an  order  for  the  sale  of  perishable  property  be- 
ing made,  the  officer  having  the  property  is  required  to 
advertise  and  sell  it  in  the  same  manner  that  personal 
property  is  required  to  be  advertised  and  sold  on  execu- 
tion, and  to  deposit  the  proceeds  thereof  with  the  clerk  to 
whose  office  the  attachment  is  required  to  be  returned.®' 
If  the  plaintiff  recovers  judgment,  the  court  may  order 
the  proceeds  to  be  paid  to  the  plaintiff.  Otherwise  the 
court  will  order  the  proceeds  paid  to  the  defendant  or 
.  other  person  entitled  thereto.'" 

66  Smith  v.  Cieotte,  11  Mich.  383.  69  Jud.    Act,   ch.   26,    §30;    Comp. 

67Jud.    Act,   ch.   26,    §29;    Comp.  Laws  1915,   §13057. 
Laws  1915,  §13056.  70  Jud.   Act,   ch.   26,   §31;    Comp. 

68  Mosher   v.    Bay   Circuit  Judge,  Laws  1915,   §  13058. 
108  Mich.   579. 


§  44  Attachment  131 

Form  of  Order  for  Sale  of  Perishable  Property  Attached 

(Title  of  court  and  cause.) 

On  reading  and  filing  the  affidavit  of  J.  K.,  attorney  for  the  above- 
named  plaintiff,  and  it  appearing  therefrom  that  the  following  property 
attached  in  this  cause,  and  remaining  in  the  hands  of  the  sheriff  of  said 
county,  consists  of  animals,  or  is  perishable,  and  ought  to  be  sold  (here 
describe  the  animals,  or  other  perishable  property  as  in  the  inventory) 
upon  motion  of  J.  K.,  attorney  for  plaintiff,  it  is  ordered  that  all  of  said 
property  herein  mentioned  be  advertised  and  sold  by  the  sheriff  of  said 
county,  in  the  same  manner  that  personal  property  is  required  by  law  to 
be  advertised  and  sold  on  execution,  and  that  said  sheriff  deposit  the  money 
arising  from  such  sale  with  the  clerk  of  this  court,  to  abide  the  further 
order  of  the  court.  .   - 

Dated,  etc. 

J.  S., 
Circuit  Judge. 

§  44.  Subsequent  proceedings  where  no  personal  service 
of  writ. 

If  it  appears  by  the  return  of  the  writ  that  property  has 
been  attached  and  that  none  of  the  defendants  could  be 
found,  the  statute  provides  tliat  the  plaintiff  shall,  within 
thirty  days  after  such  return,  unless  the  defendants  or 
some  of  them  shall  sooner  appear  in  the  suit,  cause  a  no- 
tice to  be  published  in  some  newspaper  printed  in  the 
county  for  which  the  circuit  court  out  of  which  the  writ 
issued  is  held,  and  if  no  newspaper  is  printed  in  that  coun- 
ty, then  in  some  newspaper  printed  in  the  judicial  circuit 
in  which  the  writ  shall  be  returned.  This  notice  must 
state  the  names  of  the  parties,  the  time  when,  from  what 
court  and  for  what  sum  the  writ  was  issued  and  when  the 
writ  was  returnable,  and  must  be  published  for  six  succes- 
sive weeks.  If  the  plaintiff  neglects  to  cause  such  notice 
so  to  be  published,  the  attachment  will  be  dismissed  with 
costs.  But  the  notice  may  be  personally  served  on  any 
defendant  wherever  found,  and,  if  so  served,  it  need  not 
be  published.'^ 

The  publication  of  such  notice  is  a  substitute  for  per- 

71Jud.   Act,   ch.   26,    §20;    Comp. 
Laws  1915,  §13047. 


132  Attachment  §  44 

sonal  service  of  the  writ,  and  where  there  has  been  no 
personal  service  of  the  writ  or  of  the  notice  itself,  the 
court  cannot  proceed  to  judgment  without  it.'^  The  officer 
should,  however,  not  return  the  writ  not  personally  served 
until  the  expiration  of  the  return  day  named  in  the  writ, 
but  should  keep  it,  i-n  order  to  make  personal  service,  as 
long  as  the  law  permits.  A  publication  or  service  of  the 
notice  of  attachment,  based  upon  a  premature  return  of 
the  writ  not  personally  served,  would  confer  no  jurisdib- 
tion  upon  the  court.'' 

The  statute  governing  proceedings  by  attachment  must 
be  strictly  complied  with  in  this  respect  as  in  all  others, 
and  inasmuch  as  the  statute  requires  the  publication  to 
commence  within  thirty  days  after  the  return  of  the  writ, 
a  publication  commenced  more  than  thirty  days  after  the 
return  of  the  writ  would  be  of  no  avail.'''*  The  statute  in- 
tends that  the  thirty  days  shall  be  computed  from  the 
return  day,  and  not  that  either  the  sheriff  or  the  attorney 
shall  be  at  liberty  to  extend  the  time  indefinitely  by  de- 
laying to  put  the  return  of  the  writ  on  file.'^  So,  also, 
the  publication  can  be  made  only  upon  the  basis  of  a  re- 
turn showing  that  property  has  been  attached  and  that 
none  of  the  defendants  could  be  found ;  and  where  the  re- 
turn showed  the  first  of  these  requisites,  but  did  not  show 
that  none  of  the  defendants  could  be  found,  it  was  held 
that  a  publication  based  upon  it  was  void.'^ 

72  King   V.    Harrington,    14   Mieh.  it  be  not  prematurely  filed.  Millard 

532;   Thompson  v.  Thomas,  11  Mich.  v.  Hayward,  107  Mich.  219. 

274;  Goodspeed  v.  Smith,  161  Mich.  But  the  return  need  not  be  dated, 

68g.  and  when  not  dated,  it  will  be  pre- 

73Eeynolds   v.    Marquette   Circuit  sumed    to   have   been  made    on    the 

Judge,    125    Mich.    445;    Myers    v.  date  when  it  is  filed.     Hitchcock  v. 

Prosser,    40    Mich.     644;     Drew    v.  Hahn,  60  Mich.  459. 

Claypool,  61  Mich.  233 ;  Farr  v.  Kil-  74  Millar    v.    Babcoek,    29    Mich, 

gour,    117   Mieh.   227;    Bargh   v.   L.  526;  McLaughlin  v.  Jackson  Circuit 

E.  Ermeling  &  Co.,  110  Mich.  164.  Judge,  147  Mich.  379. 

The  officer   should  not  even  datt  75  Watson  v.  Toms,  42  Mich.  561. 

his  return  prematurely,  even  though  76  Smith    v.    Runnells,    94    Mich. 


§  44  Attachment  133 

Where  a  writ  of  attachment  has  been  served  upon  one 
of  two  joint  debtors  and  levied  upon  their  joint  property, 
it  is  unnecessary  that  there  should  be  any  publication  of  a 
notice  of  attachment  as  to  the  defendant  not  served,  for, 
under  the  terms  of  the  statute,  if  it  appears  that  service 
has  been  made  upon  either  of  the  defendants,  the  suit  may 
be  proceeded  with  the  same  in  all  respects  as  when  a  sum- 
mons by  which  suit  is  commenced  is  returned  personally 
served.'''' 

The  publication  of  notice  is  fatally  defective  where  it 
incorrectly  names  a  co-defendant,''^  but  stating  in  the  no- 
tice that  the  writ  was  returnable  November  ''next"  in- 
stead of  ''instant"  does  not  necessarily  vitiate  the  pro- 
ceedings.''® 

The  publication  of  the  notice  may  be  proved  by  the 
affidavit  of  the  printer,  or  the  foreman  or  clerk  of  the 
printer,  of  the  newspaper  in  which  it  has  been  made. 
Such  affidavit  is  by  the  statute  declared  to  be  primgi  facie 
evidence  of  the  publication  and  of  the  facts  therein 
stated. ^°  The  filing  of  such  affidavit  is  jurisdictional  and 
may  be  refused  where  it  is  sought  to  file  it  nunc  pro  tunc 
on  motion  to  set  aside  the  judgment.*^  If  the  declaration 
is  filed  before  such  affidavit  is  filed,  the  judgment  is  not 
merely  voidable  but  is  void.^^ 

617;   Cochrane  v.  Johnson,  95  Mich.  until    the    expiration    of    six    weeks 

67.      See   also  Millard   v.    Hayward,  from   the   date  of  the  first  publica- 

107  Mich.  219.  tion.     However,  it  is  held   that  an 

77  Hubbardston  Lumber  Co.  r.  affidavit  made  after  the  sixth  pub- 
Covert,  35  Mich.  254;  Smith  v.  Run-  lieation  but  before  the  expiration  of 
neUs,  94  Mich  617;  Jud.  Act,  ch.  26,  the  full  six  weeks'  period  is  not  pre- 
§  19;  Comp.  Laws  1915,  §  13046.  mature.    Kurtz  v.  Gartner,  141  Mich. 

78  Schoenfeld  v.  Bourne,  159  Mich.  262. 

139.  81  Savidge      v.      Ottawa      Circuit 

79  Drew  v.  Dequindrc,  2  Doug.  93.  Judge,  105  Mich.  257. 

80  Jud.  Act,  ch.  17,  §38;  Comp.  82  Nugent  v.  Nugent,  70  Mich. 
Laws  1915,   §12526.  52;   Steere  v.  Vanderberg,  67  Mich. 

The  affidavit  should   not  be  filed      530;   Wells  v.  Walsh,  25  Mich.  344. 


134  Attachment  §  44 

Form  of  Notice  of  Attachment 

(Title  of  court  and  cause.) 

Notice  is  hereby  given  that,  on  the day  of ,  A.  D ,  a 

writ  of  attachment  was  issued  out  of  said  court  in  favor  of  A.  B.,  as  plain- 
tiff,   and    against    the    lands,    tenements,    goods,    chattels,    moneys    and 

effects  of  C.  D.,  as  defendant,  for  the  sum  of   dollars,  which  said 

writ  was  returnable  on  the day  of ,  A.  D 

Dated,  etc. 

J.  K., 
Attorney  for  Plaintiff. 
Business  a,ddress: 

,  Mich. 

Form  of  Affidavit  of  Publication  of  Notice  of  Attachment 

State   of   Michigan,  | 
County     of C 

W.  S.,  being  duly  sworn,  deposes  and  says  that  he  is  the  printer  (or, 
the  foreman  of  the  printer,  or,  the  principal  clerk  of  the  printer)    of  the 

,   a  newspaper  printed   in   said  county;    that  a  notice,  of   which   a 

printed  copy  taken  from  said  newspaper  is  hereto  annexed,  was  published 
in  said  newspaper  for  six  successive  weeks;    and  that  said  publication  of 

said  notice  was  commenced  on  the day  of ,  A.  D 

W.  S. 

Subscribed,  etc. 

§  45.  Return  of  writ. 

It  is  the  duty  of  the  sheriff  or  other  officer  to  whom 
the  writ  of  attachment  has  been  delivered  for  service  to 
make  his  proof  of  service  immediately  after  service,  or, 
in  case  of  no  service,  then  immediately  after  the  return 
day.  If  there  be  more  than  one  defendant,  the  officer  is 
required,  if  the  plaintiff  requests  it,  to  make  proof  of  serv- 
ice immediately  after  service  on  each  defendant,  in  which 
case  the  proof  of  service  may  be  indorsed  upon  or  at- 
tached to  a  copy  of  the  writ,  and  the  original  retained  un- 
til the  return  day  for  service  on  the  other  defendants.'' 

M  Cir.  Ct.  Rule  18,  §  1.  Eeturn  as  evidence  of  officer's  ac- 

Retum  may  be  regarded  as  made,  tion  as  to  whether  levy  was  subject 

for  many  purposes,  when  indorsed  on  to  prior  claim,  see  Wallen  v.  Ross- 

the  writ  and  signed,   before  actual  man,  45  Mich.  3.33. 

filing    with    the    clerk.      Watson    v. 

ThoniH,  42  Mich.  .561 


§  45  Attachment  135 

If  defendant  is  not  found,  the  return  should  not  be  made 
before  the  return  day.^*  The  attachment  lien  is  not  re- 
leased by  a  return  not  made  until  the  day  after  the  return 
day.^*  The  return  should  clearly  show  what  was  done  by 
the  officer,^^  although,  where  it  does  not  otherwise  appear, 
there  is  a  presumption  that  the  levy  was  made  in  the 
county  (semble)  and  that  the  property  levied  on  belonged 
to  defendant.*'''  A  return  that  ''I  am  unable  to  find  the 
defendant  named"  has  been  held  sufficient,**  especial- 
ly where  ' '  after  diligent  inquiry ' '  is  added.*® 

If  any  bond  has  been  given  to  the  officer  for  the  release 
of  the  property  attached,  he  should  state  that  fact  in  his 
proof  of  service  and  file  the  bond  with  the  writ  when  re- 
turned.®® 

The  return  cannot  be  collaterally  attacked,®^  but  the 
sheriff  may  amend  his  return  at  any  time  before  filing  it,®^ 
and  it  may  be  amended  thereafter  by  leave  of  court,®*  but 
not  in-  matters  affecting  the  jurisdiction  unless  notice  is 
given  to  the  parties  to  be  affected  by  it.®*  In  an  action 
against  a  sheriff  it  is  improper  to  allow  them  to  consider 
his  return  as  amended  to  conform  to  the  truth  as  the  jury 
should  find  it  to  be  from  the  evidence.®^ 

84  Holmes  v.  King,  158  Mich.  445;  92  Watson  v.  Toms,  42  Mich.  561. 
Drew  V.  Clayton,  61  Mich.  233;  93  People  v.  Judges  of  Calhoun 
Myers  v.  Prosser,  40  Mich.  644;  Circuit  Court,  1  Doug.  417  (holding 
King  V.  Harrington,  14  Mich.  532.  supreme  court  cannot  grant  amend- 

85  Horton  v.  Monroe,  98  Mich.  ment)  ;  Kidd  v.  Dougherty,  59  Mich. 
195.  240   (date  of  return). 

86  Watson  V.  Dingman,  120  Mich.  But  return  cannot  be  treated  as 
443,  showing  as  to  service  on  two  amended  where  leave  of  court  not 
persons.  obtained.      Standard    Wine    Co.    v. 

87  Horton    v.     Monroe,    98    Mich.  Chipman,  135   Mich.   273. 

195.  94  Haynes   v.    Knowles,    36    Mieh. 

88  Hitchcock    v.    Hahn,    60    Mich.       407. 

459.  If   extrinsic   showing   is   required, 

89  Horton  v.  Monroe,  98  Mich.  notice  should  be  given  to  the  ad- 
195.  verse   party.     Coclirane   v.  Johnson, 

90  Jud.   Act,   ch.   26,    §  21 ;  Comp.       95  Mich.   67. 

Laws   1915,   §  13048.  95  Standard  Wine  Co.  v.  Chipman, 

91  Hewitt  V.  Durant,  78  Mich.  186.      135  Mich.  273. 


136  Attachment  §  45 

Form  of  Betum  on  Attacliment 

State  of  Michigan, 
County    of . 


'>  I  ss. 


I  hereby  certify  and  return  that,  by  virtue  of  the  within  writ  of  attach- 
ment, to  me  directed  and  delivered,  I  have  this  day  attached  the  property 
of  the  Tpithin-named  defendant  mentioned  in  the  inventory  and  appraisal 
thereof  hereto  annexed,  all  of  which  said  property  was  appraised  by  E.  F. 
and  G.  H.,  two  disinterested  freeholders  of  said  county  who  were  by  me 
first  duly  sworn  to  make  a  true  appraisement  thereof,  and  whose  appraisal 
is   in    writing,    signed   by   themselves   and    herewith   returned;    and   I    do 

further  certify  that,  on  the day  of ,  A.  D ,1  served  a 

copy  of  said  writ  and  a  copy  of  said  inventory,  certified  by  me,  upon  C.  D., 

the  defendant  named  in  said  writ,  by  delivering  the  same  to  him  at , 

in  said  county  (or,  if  the  defendant  is  not  found,  say:  And  I  further  cer- 
tify and  return  that,  after  diligent  search  and  inquiry,  I  am  unable  to 
find  C.  D.,  the  defendant  named  in  the  said  writ  in  my  bailiwick). 


Dated,  etc. 


S.  T., 
Sheriff. 


§  46.  Proceeding's   after  return  where  writ  personally 
served. 

If,  upon  the  return  of  a  writ  of  attachment,  it  appears 
that  a  copy  has  been  served  personally  on  the  defendant 
or  any  of  the  defendants,  or  if  the  defendant  or  any  of 
the  defendants  appear  in  the  suit,  the  same  proceedings 
may  be  thereupon  had  in  the  suit  in  all  respects  as  upon 
the  return  of  a  summons  personally  served  in  suits  com- 
menced by  summons.^^ 

§  47.  Intervention  by  claimant  of  property  attached. 

Under  the  provision  of  the  Judicature  Act  permitting 
intervention  in  certain  cases,  a  person  cannot  intervene 
in  an  attachment  suit  merely  to  establish  ownership  of 
property  levied  on  by  attachment.®''^ 

96  Jud,  Act,  ch.  26,  §  19;  Comp  Judge,  202  Mich.  116,  and  see  Peter- 
Laws  1915,   §18046.  son  v.  Swenningston,  178  Mich.  294. 

97  Sidebottom   v.    Calhoun   Circuit 


§  48  Attachment  137 

§  48.  Bond  for  release  of  property. 

The  property  attached  must  remain  in  the  hands  of  the 
officer  serving  the  attachment,  unless  the  defendant  or 
any  other  person  in  whose  possession  the  property  may 
have  been  found  shall,  before  judgment  in  the  suit,  de- 
liver to  the  officer  a  bond,  executed  to  him  by  two  or  more 
sufficient  sureties,  being  freeholders  within  this  state, 
either  with  or  without  the  defendant  or  such  other  person, 
to  the  satisfaction  of  the  officer  as  provided  by  statute." 

The  bond  may  be  in  a  penalty  double  the  amount  speci- 
fied in  the  affidavit  annexed  to  the  writ  as  due  to  the 
plaintiff,  conditioned  for  the  payment  of  any  judgment 
which  may  be  recovered  by  the  plaintiff  within  sixty  days 
after  the  judgment  is  rendered,  or  in  a  penalty  double  the 
appraised  value  of  the  property,  conditioned  that  the 
property  shall  be  produced,  in  like  condition  as  when  re- 
ceived, to  satisfy  any  execution  that  may  be  issued  on  any 
judgment  to  be  recovered  by  the  plaintiff  in  attachment.®® 
Upon  the  execution  and  delivery  of  the  bond,  the  property 
attached  will  be  delivered  by  the  officer  to  the  defendant 
or  other  person  in  whose  possession  it  was  found,  but  this 
does  not  operate  to  discontinue  or  in  any  way  affect  the 
suit.^ 


98Jud.  Act,   eh.   26,   §15;    Comp.  The  statute  contemplates  that  no 

Laws  1915,   §  13042.  one  may  obtain  the  delivery  of  the 

The    officer    has    no    authority   to  property   upon    giving   a   bond    but 

deliver  the  property  to  the  plaintiff  the  defendant  or  the  person  in  whose 

while  the  suit  is  pending.     Vanneter  possession    the    property    is    found. 

V.  Grossman,  39  Mich.  610.  King  v.  Hubbell,  42  Mich.  597,  60.'i. 

The  rights  of  the  plaintiff  to  the  99  Jud.   Act,   ch.   26,   §16;    Comp. 

property  attached  are  inchoate  until  Laws   1915,   §  1304.*?. 

judgment  and  execution  levy.  Fuller  The  bond  must  run  to  the  sheriff, 

V.  Hasbrouck,  46  Mich.  78.  who  holds  it  in  trust  for  the  bene- 

A    proper    means    of    protecting  fit     of     the     plaintiff.      Forrest     v. 

property  attached  would  be  to  put  O'Donnell,  42  Mich.  556. 

a  keeper  in  charge,  which  would  be  1  Jud.    Act,    ch.    26,    §17;    Comp. 

a    sufficient    precaution,    unless    vi-  Laws   1915,   §  13044. 
olence    is    apprehended.      Stilson    v. 
Gibbs,  46  Mich.  215. 


138  Attachment  §  48 

The  giving  of  the  bond  operates  as  an  appearance,  and 
converts  the  action  from  one  in  rem  into  one  in  personam,* 
but  does  not  waive  defects  in  the  service  of  the  writ.' 
Where  a  sheriff,  on  receipt  of  a  bond,  has  surrendered 
possession,  he  need  not  secure  the  attachment  debtor  from 
interference  with  his  possession  by  third  persons.* 

In  case  of  a  failure  to  perform  the  condition  of  the 
bond,  the  plaintiff  in  attachment  may  prosecute  a  suit 
thereon  in  his  own  name  and  is  entitled  to  recover  the  full 
value  of  the  property  attached,  or  so  much  thereof  as  will 
be  sufficient  to  satisfy  the  judgment  rendered  in  the  at- 
tachment suit,  with  interest  and  costs.*  Prior  to  the  Judi- 
cature Act,  suit  could  be  brought  only  in  the  name  of  the 
officer  unless  plaintiff  took  an  assignment  of  the  bond.* 
It  is  no  defense  that  the  property  did  not  belong  to  the 
attachment  defendants  or  was  incumbered,''^  and  the  sure- 
ties cannot  question  the  sufficiency  of  the  affidavit  for  at- 
tachment where  defendant  in  attachment  does  not  do  so 
and  they  have  stipulated  that  the  attachment  was  com- 
menced in  due  form.*  So  a  surety  is  liable  although  his 
co-surety  is  not  a  freeholder,*  althougli  a  discontinuance 
as  to  a  part  of  the  defendants  was  held  at  one  time  to  dis- 
charge the  sureties.^® 

Form  of  Bond  to  Obtain  Discharge  of  Property 

Know  all  men  by  these  presents,  that  we,  C.  D.,  as  principal,  and  E.  F. 
and  G.  H.,  as  sureties,  are  held  and  firmly  bound  unto  S.  T.,  sheriff  of  the 

2  Butcher    v.    Cappon    &    Bertsch  Judgment  where  bond  is  in  alter- 

Leather  Co.,  148  Mich.  552.  native  for  production  of  the  prop- 

8  Reynolds  v.  Marquette  Circuit  erty  or  pajTiient  of  judgment,  see 
Judge,  125  Mich.  445.  Goebel  v.  Stevenson,  35  Mich.  172. 

4  Patch  V.  Wessels,  46  Mich.  249.  6  See    Forrest    v.    O'Donnell,    42 

5Jud.    Act,    ch.    26,    §18;    Comp.       Mich.   556;    Dorr   v.   Clark,   7   Mich. 
Laws    1915,    §  13045.      See   Door   v. 
Clark,     7     Mich.     310;     Forrest     v. 
O'Donnell,  42  Mich.  556. 

The  recovery  is  not  limited  to  the 
value  of  the  property  attached. 
Pfansteihl  v.  Vanderhoof,  22  Mich. 
296. 


310. 

7  Dorr  V. 

Clark,  7  Mich 

.  310 

8  Goebel 

V.    Stevenson, 

35 

Mich, 

172. 

9  Gibbs  V 

.  Johnson,  63 

Mich 

.  671. 

10  Audre 

v.    Fitzhugh, 

18 

Mich. 

93. 

§  48  Attachment  l^Ji 

county  of ,  in  the  sum  of dollars,  lawful  money  of  the  United 

States,  to  be  paid  to  the  said  sheriff,  or  his  certain  attorney,  executors,  ad- 
ministrators, or  assigns,  for  which  payment,  well  and  truly  to  be  made,  we 
bind  ourselves,  our,  and  each  of  our,  heirs,  executors,  and  administrators, 
jointly  and  severally,  firmly  by  these  presents. 

Sealed  with  our  seals,  and  dated  this day  of ,  in  the  year 

one  thousand  nine  hundred 

Whereas  A.  B.  has  commenced  a  suit  in  the  circuit  court  for  the  county 

of by  writ  of  attachment,  issued  out  of  and  under  the  seal  of  said 

court  on  the day  of ,  A.  D ,  against  the  lands,  tene- 
ments, goods,  chattels,  moneys  and  effects  of  the  above-bounden  C.  D.,  as 
defendant,  directed  and  delivered  to  the  sheriff  of  said  coimty,  by  virtue  of 
which  said  writ  of  attachment  he,  the  said  sheriff,  attached  certain  property 
described  in  the  inventory  thereof  made  by  the  sheriff  and  annexed  to  said 
writ  (if  the  bond  is  delivered  by  a  person  in  whose  possession  the  property 
was  found,  other  than  the  defendant,  add:  Which  said  property  was  found 
at  the  time  of  the  attachment  thereof,  as  aforesaid,  in  the  possession  of  the 
above-bounden  0.  D.) : 

Now,  the  condition  of  this  obligation  is  such  that  if  the  said  C.  D.  shall 
pay  any  judgment  which  may  be  recovered  by  the  said  A.  B.,  plaintiff,  in 
said  suit,  within  sixty  days  after  such  judgment  shall  be  rendered,  then  this 
obligation  is  to  be  void;  otherwise  to  remain  in  full  force  and  virtue. 

(Or,  'the  bond  may  be  in  a  penalty  double  the  appraised  value  of  the 
property,  in  form  the  same  as  above,  as  far  as  the  words,  ' '  Now,  if  the  said 
C.  D.,"  etc.,  in  the  place  of  which  should  be  used  the  following:  Now,  if 
the  said  C.  D.  shall  produce  in  like  condition  as  when  received  the  said  prop- 
erty so  attached,  as  aforesaid,  to  satisfy  any  execution  that  may  be  issued 
on  any  judgment  which  shall  be  recovered  by  the  said  A.  B.,  plaintiff,  upon 
such  attachment,  then  this  obligation  is  to  be  void;  otherwise  to  remain  in 
full  force  and  effect.) 

C.  D.  [L.  S.] 
E.  F.  [L.  S.] 

(Add  justification.)  G-  H.  [L.  S.] 

Form  of  Bond  to  Obtain  Release  of  Property  Attached  In  a  Log-Lien 

Suit 

Know  all  men  by  these  presents,  that  we,  L.  O.,  as  principal,  and  E.  F. 
and  G.  H.,  as  sureties,  are  held  and  firmly  bound  unto  A.  B.  in  tlie  sum  of 

dollars  (double  the  amount  claimed  in  the  writ),  to  be  paid  to  the 

said  A.  B.,  or  to  his  certain  attorney,  executors,  administrators,  or  assigns, 
for  which  payment,  well  and  truly  to  be  made,  we  bind  ourselves,  our,  and 
each  of  our,  heirs,  executors  and  administrators,  jointly  and  severally,  firmly 
by  these  presents. 

Sealed  with  our  seals,  and  dated  the day  of ,  in  the  year 

one  thousand  nine  hundred  

Whereas  the  above-named  A.  B.  has  caused  to  be  issued  out  of  and 
under  the  seal  of  the  circuit  court  for  the  county  of  a  certain  writ 


140  Attachment  §  48 

of  attachment,  in  which  the  said  A.  B.  is  plaintiff  and  C.  D.  is  defendant, 

bearing  date  the day  of ,  A.  D ,  and  made  returnable 

on  the day  of ,  A.  D ,  directed  and  delivered  to  the 

sheriff  of  said  county  of ,  commanding  vhim,  the  said  sheriff,  among 

other  things,  to  attach  the  following  goods  and  chattels,  to  wit:  (Here 
insert  the  description  of  the  property  as  in  the  writ),  or  so  much  thereof 

as  should  be  sufficient  to  satisfy  the  sum  of   dollars,  with  interest, 

costs,  disbursements,  charges,  and  expenses  of  suit,  by  virtue  of  which  said 
writ  the  said  sheriff  has  attached  and  now  holds  the  following  described 
property,  to  wit:  (Here  insert  the  description  of  the  property  sought  to 
be  released). 

And  whereas  the  above-bounden  L.  O.  is  the  owner  of  said  last-described 
property,  and  is  desirous  of  obtaining  the  release  thereof  from  the  said 
attachment,  according  to  the  statute  in  such  case  made  and  provided: 

Now,  the  condition  of  this  obligation  is  such  that  if  the  said  L.  O.  shall 
pay  or  cause  to  be  paid  all  damages,  costs,  charges,  disbursements,  and  ex- 
penses that  may  be  recovered  by  the  said  A.  B.  against  the  said  C.  D.  that 
may  be  found  to  be  a  lien  upon  or  against  the  property  described  in  the 
said  writ  of  attachment,  then  this  obligation  is  to  be  void;  otherwise  to 
remain  in  full  force  and  effect. 

L.  O.  [L.  S.] 
E.  F.   [L.  S.] 
G.  H.  [L.  S.l 
(Add  justification. ) 

I  hereby  approve  the  foregoing  bond  both  in  form  and  in  substance. 

Dated,  etc. 

> 

Clerk. 

§  49.  Appearance  of  defendant  before  judgment  where 
not  served  with  writ. 
If  any  defendant  not  served  with  a  copy  of  the  attach- 
ment shall  appear  at  any  time  before  judgment,  he  may 
be  admitted  by  the  court  to  defend  the  suit  upon  such 
terms  as  the  court  may  deem  reasonable. ^^  Leave  to  de- 
fend, or  the  imposition  of  terms,  are  governed  by  the 
same  rules  as  if  the  suit  was  commenced  by  summons." 
The  application  to  be  admitted  to  defend  should  be  by 
petition  to  the  court,  duly  verified,  which  should  set  forth 
distinctly  the  facts  and  circumstances  upon  which  it  is 

llJud.   Act,   eh.   26,   §24;    Comp.  12  Thompson  v.  Thomas,  11  Mich. 

Laws  1915,  §13051.  274. 


§  51  Attachment  141 

based,  and  that  the  defendant,  so  applying,  has  a  good 
and  substantial  defense  upon  the  merits  to  the  plain- 
tiff's action,  as  he  is  advised  by  his  counsel,  to  whom  he 
has  fully  and  fairly  stated  the  case,  and  as  he  verily  be- 
lieves. 

§  50.  How  long  property  bound  by  levy. 

The  office  of  a  writ  of  attachment  is  to  hold  the  prop- 
erty until  the  coming  of  an  execution  to  enforce  the  judg- 
ment against  the  property  of  the  debtor,  so  that  the 
debtor  may  not  put  his  property  beyond  the  reach  of 
the  creditor  when  the  creditor  shall  have  obtained  a 
judgment."  So  it  is  said  that  the  rights  acquired  by 
attachment  are  inchoate  until  judgment  and  execution 
levy."  The  creditor,  however,  has  no  right  to  hold  the 
property  beyond  a  reasonable  time  to  obtain  his  judg- 
ment and  issue  and  levy  his  execution.^^  But  a  delay  in 
levying  an  execution  of  two  months  after  it  was  legally 
issuable  has  been  held  not  so  unreasonable  as  to  release 
the  property  from  the  attachment  lien.^^  Of  course,  when 
an  attachment  suit  is  discontinued,  the  right  to  detain 
the  property  ceases.^'' 

VI.  Dissolution  or  Quashing 

§  51.  Nature  and  reason  of  proceeding. 

The  proceeding  by  attachment,  by  which  a  creditor 
may  seize  the  property  of  his  debtor  before  the  existence 
of  any  debt  has  been  judicially  established,  upon  a  mere 
belief  that  certain  facts  exist  and  before  it  can  be  known 
whether  such  facts  really  do  exist  or  not,  is  a  harsh  and 
extraordinary  remedy,  and,  while. in  general  beneficent 

13  Trowbridge  v.  Bullard,  81  Mich.  15  Trowbridge  v.  Bullard,  81  Mich. 
451.  451. 

14  Fuller  v.  Hasbrouck,  46  Mich.  16Geigea  v.  Greiner,  68  Mich.  153. 
78;    Terry   v.    Metevier,    104    Mich.          17  Orr  v.  Keyes,  37  Mich.  385. 
50. 


142  Attachment       *  §  51 

in  its  operation  by  enabling  a  creditor  to  protect  him- 
self against  well  suspected  fraud  and  dishonest  intent  to 
evade  payment  at  a  time  when  the  existence  of  such  in- 
tent may  not  be  and  perhaps  cannot  be  an  absolute  cer- 
tainty, yet  it  has  often  been  used  oppressively  against 
honest  debtors  who,  notwithstanding  the  alleged  belief 
of  anxious  creditors,  are  guilty  of  nothing  constituting 
a  ground  for  such  unusual  seizure  of  their  property.  For 
the  relief  of  persons  thus  pursued,  a  remedy  has  been 
provided  by  which  a  debtor  whose  property  has  been 
seized  upon  a  groundless  attachment  may  have  his  prop- 
erty released  therefrom  and  restored  to  him.  This  rem- 
edy, although  entirely  statutory,  and  not  to  be  extended 
in  any  respect  beyond  the  scope  which  the  legislature 
has  seen  fit  to  give  it,  is  nevertheless  not  to  be  hampered 
by  a  too  strict  construction  of  the  statute,  which,  on  the 
other  hand,  should  be  treated  as  a  remedial  one  and  con- 
strued in  accordance  with  its  spirit  to  effectuate  the  ob- 
ject which  it  has  in  view.^^ 

§  52.  By  and  to  whom  application  made. 

By  statute,  in  all  cases  where  a  writ  of  attachment  has 
been  issued  under  the  provision  of  law,  any  defendant 
whose  property  has  been  attached  by  virtue  of  the  writ 
may  apply  to  the  judge  of  the  circuit  court  or  to  a  cir- 
cuit court  commissioner  of  the  county  where  the  writ 
issued  for  a  dissolution  of  the  attachment." 

§  53.  Remedy  for  unjust  attachment. 

Although,  in  some  jurisdictions,  the  truth  of  the  facts 
alleged  in  an  affidavit  for  a  writ  of  attachment  may  be 
contested  by  a  motion  to  quash  the  writ  and,  in  others, 

18  Eowe  V.  Kellogg,  54  Mich.  206.  land  as  well   as  of  personal  prop- 

19Jud.  Act,  ch.   26,   §48;    Comp.  erty.      Smith    v.    Collins,    41    Mich. 

Laws   1915,    §  13075.  173 ;  Edgarton  v.  Hinchman,  7  Mich. 

Statute  applies  to  attachment  of  652. 


§  54  Attachment  143 

by  a  plea  in  abatement,  in  this  state,  the  only  method  is 
by  an  application  to  a  judge  or  commissioner  to  dissolve 
the  attachment.''"  Where,  however,  a  defendant  wishes 
to  raise  the  question  of  the  sufficiency  of  the  affidavit 
upon  its  face,  and  not  to  contest  the  truth  of  its  allega- 
tions, lie  may  do  so  by  motion  to  quash  the  writ,^^  but 
must  do  so  before  he  enters  his  general  appearance  or 
pleads  to  the  merits,  for,  if  he  delays  until  that  time, 
the  defect  will  be  deemed  to  have  been  waived.''^ 

The  proceeding  to  dissolve  an  attachment  is  applica- 
ble not  only  to  writs  of  attachment  by  which  a  suit  is 
commenced,  but  also  to  those  issued  after  a  suit  has  been 
commenced  by  summons  or  declaration.  The  dissolution 
in  such  case  has  no  effect  other  than  to  release  the  prop- 
erty attached.^' 

§  54.  Who  may  apply  for. 

Only  a  defendant  whose  property  has  been  attached 
can  apply  for  the  dissolution  of  an  attachment,^*  and  it 
is  a  general  rule  that  only  a  defendant,  who  is  entitled 
to  the  possession  of  the  property  can  apply.^^  Where, 
therefore,  the  defendant  by  his  own  act  has  alienated  his 
possessory  right,  he  is  not  entitled  to  have  the  attach- 
ment dissolved.2^  A  good  illustration  of  these  principles 
occurs  where  the  defendant  has  made  an  assignment  for 

20  Bower  v.  Town,  12  Mich.  230;  Mich.  543;  Manhard  v.  Schott,  37 
John  D.  Gruber  Co.  v.  Montcalm  Mich.  234;  Crane  v.  Hardy,  1  Mich. 
Circuit  Judge,  183  Mich.  477.     Bill       56. 

in    equity,    see    Emerson    v.    Detroit  23  Jud.    Act,   ch.   26,    §40;    Comp. 

Steel  &  Spring  Co.,  100  Mich.  127.  Laws  1915,  §  13067. 

21  Pierce  v.  Johnson,  93  Mich.  24  Rowe  v.  Kellogg,  54  Mich.  206. 
125;  Roelofson  v.  Hatch,  3  Mich,  26  Price  v.  Reed,  20  Mich.  72;  Gott 
278.  V.   Hoschna,   57   Mich.  413;    Zook  v. 

22  John  D.  Gruber  Co.  v.  Mont-  Plough,  42  Mich.  487;  Gore  v.  Ray, 
calm  Circuit  Judge,  183  Mich.  477;  73  Midi.  385. 

Gunn   Hardware   Co.  v.   Deniaon,   83  26  A  person  who  has  sold  the  land 

Mich.  40;  Dailey  v.  Kennedy,  64  attached  cannot  move.  Peterson  v. 
Mich.    208;    Bryant    v.    Hendee,    40       Swcuningston,  178  Mich.  294. 


144  Attachment  §  54 

the  benefit  of  his  creditors.  In  such  case,  if  the  assigned 
property  be  attached,  the  assignee  cannot  apply  for  a 
dissolution  of  the  attachment,^'  because  that  right  is 
limited  to  a  defendant;  but,  on  the  other  hand,  the  de- 
fendant cannot  apply ,^®  because  he  is  not  entitled  to 
possession  of  the  property.  The  right  to  possession  is 
not,  however,  in  all  cases  a  prerequisite.  Where  the 
property  is  held  under  other  attachment  or  execution 
levies,  the  defendant  is  not  thereby  debarred  from  ap- 
plying for  and  having  the  attachment  dissolved,  not- 
withstanding the  fact  that  he  would  not  be  entitled  to 
have  possession  restored  to  him.^^ 

A  defendant  who  is  entitled  to  a  portion  of  the 
property  attached  may  make  the  application.^"  So,  a 
partner  who  is  not  implicated  in  the  grounds  on  which 
a  writ  of  attachment  has  been  issued  and  partnership 
property  seized,  is  entitled  to  have  the  attachment  dis- 
solved and  the  property  restored  to  him.^^  But  a  partner 
who  is  implicated  cannot  obtain  a  dissolution  of  the 
attachment  on  the  ground  that  his  co-partners  were  not 
implicated.^^ 

The  owner  of  land  attached  may  move  for  a  dissolu- 
tion of  an  attachment  as  well  as  the  owner  of  person- 
alty.^' For  this  purpose,  it  is  not  essential  that  the  de- 
fendant making  the  application  should  have  an  estate 
in  fee  simple.  If  he  is  interested  at  all  in  the  property 
levied  upon,  he  may  move  for  a  dissolution.    Thus,  where 

27  Gott  V.  Hoschna,  57  Mich.  413 ;  487,  overruling  Johnson  v.  De  Witt, 
Emerson  v.  Detroit  Steel  &  Spring      36  Mich.  95. 

Co.,  100  Mich.  127;  Turner  v.  Hatch,  30  Patterson  v.  Goodrich,  31  Mich. 

100  Mich.  65.  225. 

28  Chandler  v.  Nash,  5  Mich.  409.  31  Edwards   v.    Hughes,   20    Mich. 

29  Sheldon    v.    Stewart,    43    Mich.  289. 

574;    Schall  v.  Bly,  43  Mich.   401;  82  Warren     v.     Winterstein,     114 

State    Bank    v.    Whittle,    41    Mich.  Mich.  647. 

365;  Smith  v.  Collins,  41  Mich.  173;  33  Smith  v.  Collins,  41  Mich.  173; 

Drs.  K.  &  K.,  etc.,  Ass'n  v.  Post  &  Edgarton  v.  Hinehman,  7  Mich.  352; 

Tribune  Job  Printing  Co.,  58  Mich.  Schall  v.  Bly,  43  Mich.  401. 


§  55  Attachment  145 

the  property  attached  is  owned  by  the  moving  defend- 
ant's wife  in  fee  and  is  occupied  by  them  both  as  a  home- 
stead, he  has  such  a  valuable  and  important  interest 
therein  as  the  court  will  protect,  and  may  apply  to  have 
the  attachment  dissolved.^* 

The  fact  that  a  defendant  has  appeared  and  pleaded 
to  the  action  does  not  preclude  him  from  taking  proceed- 
ings for  the  dissolution  of  the  attachment.  The  general 
appearance  does  not  operate  as  an  admission  of  the  facts 
alleged  in  the  affidavit  for  the  attachment.'^ 

But  a  defendant  who  has  procured  a  release  of  the 
property  by  executing  a  bond  to  the  sheriff  cannot  ap- 
ply for  a  dissolution  of  the  attachment.  He  might  have 
availed  himself  of  one  method  of  relief  or  the  other,  but, 
having  elected  the  former,  he  cannot  subsequently  re- 
sort to  the  latter.'^ 

§  55.  When  application  may  be  made. 

The  application  may  be  made  at  any  time  before  judg- 
ment in  the  attachment  suit,  either  before  or  after  ap- 
pearance and  issue  joined.  After  judgment,  it  has  been 
held,  there  would  be  no  propriety  in  such  a  motion,  be- 
cause the  property  is  then  liable  to  an  ordinary  execu- 
tion ; ''  but,  in  this  connection,  it  is  to  be  observed  that,  if 
dissolution  proceedings  have  been  instituted  before  judg- 
ment, they  are  not  superseded  by  the  rendition  of  judg- 
ment in  the  attachment  suit,  even  though  the  judgment 
be  followed  by  execution  issued  and  levied  upon  the 
property.  On  the  other  hand,  the  rights  of  the  parties 
stand  and  should  be  adjudicated,  as  in  other  actions,  as 
they  were  at  the  time  the  proceedings  were  commenced, 
unless  the  defendant  by  his  own  acts  has  lost  his  rights 
to  the  possession  of  the  property.'^ 

84,Eowe  V.  Kellogg,  54  Mich.  206.  37  Hyde  v.  Nelson,  11  Mich.  853; 

85  Hyde  v.  Nelson,  11  Mich.  353.  Roelofson  v.  Hatch,  3  Mich.  277. 

36Paddoek  v.  Matthews,  3  Mich.  88  Calvert,   etc.,  Pub.   Co.   v.  Drs. 

18.  K.  &  K.,  etc.,  Ass'n,  61  Mich.  336; 
1  Abbott— 10 


146  Attachment  §  56 

§  56.  Requisites  of  application. 

The  statute  requires  that  the  application  shall  be  in 
writing  and  contain  the  reasons  for  the  application,^^  and 
the  supreme  court  has  held  that  it  should  be  verified.*" 

The  application  must  show  that  the  defendant  who 
applies  is  the  owner  of  the  property  attached,  and,  in 
the  case  of  personal  property,  that  he  is  entitled  to  the 
possession  of  the  property.*^  The  latter,  however,  need 
not  be  expressly  alleged,  for,  where  an  allegation  of 
ownership  is  distinctly  made  and  there  is  nothing  in  the 
case  indicating  that  any  other  person  has  acquired  any 
right  to  the  possession,  the  legal  presumption  that  the 
owner  of  property  is  entitled  to  the  possession  of  it  may 
fairly  be  indulged.*''  In  the  case  of  land,  the  applica- 
tion need  not  show  that  the  defendant  is  entitled  to  the 
possession  of  it,  for,  inasmuch  as  the  levy  of  the  attach- 
ment does  not  dispossess  the  defendant  of  his  land,  it 
would  be  absurd  to  require  him  to  solicit  its  restoration." 

The  jurisdiction  of  the  officer  in  the  dissolution  pro- 
ceedings depends  upon  the  showing  in  the  application 
that  the  defendant's  property  was  attached,**  and,  as  no 
order  respecting  the  property  can  be  made  unless  the 
property  be  known,  it  is  necessary  that  the  application 
should  set  it  forth  with  sufficient  certainty.*^  An  appli- 
cation which  does  not  describe  the  property,  but  only 
states  that,  by  virtue  of  the  writ,  ' '  property  to  the  value 
of  more  than  three  thousand  dollars  was  attached  and 
is  now  in  possession  of  the  sheriff,"  does  not  confer 
jurisdiction.*® 

Gore  V.  Ray,  73  Mich.  385;  Drs.  K.  42  Zook  v.  Blougli,  42  Mich.  487; 

&  K.,  etc.,  Ass'n  v.  Post  &  Tribune  Johnson  v.   De   Witt,   36   Mich.   95; 

Job  Printing  Co.,  58  Mich.  487.  Macumber  v.  Beam,  22  Mich.  395. 

89  Jud.   Act,   eh.   26,    §48;    Comp.  43  Smith  v.  Collins,  41  Mich.  173. 

Laws  1915,  §  13075.  44  Osborne    v.    Eobbins,    10    Mich. 

40  Osborne    v.    Robbing,    10    Mich.  277;   Zook  v.  Plough,  42  Mich.  487. 
277.  45  Osborne    v.    Robbins,    10    Mich. 

41  Johnson  v.  Do  Witt,  36  Mich.  277;  Nelson  v.  Hyde,  10  Mich.  521. 
95.  46  Nelson  v.  Hyde,  10  Mich.  521. 


§  56  Attachment  147 

The  application  must  state  the  reasons  for  the  disso- 
lution of  the  attachment.*'  This  part  of  the  application 
usually  takes  the  form  of  a  denial  of  the  statutory- 
grounds  alleged  in  the  affidavit  for  the  writ  of  attach- 
ment. The  denial  should  be  of  each  distinct  ground  al- 
leged in  the  affidavit.*'  An  application,  therefore,  is  bad 
which  denies  conjunctively  that  the  defendant  **has  as- 
signed, disposed  of,  and  that  he  is  about  to  assign,  dis- 
pose of  and  conceal  his  property  with  intent  to  defraud 
his  creditors,  or  that  he  has  made  any  fraudulent  dispo- 
sition whatever  of  his  property  with  said  intent. ' ' "  But 
a  denial  by  the  defendant  that  he  has  assigned,  disposed 
of  or  concealed  his  property  with  intent  to  defraud  his 
creditors  is  not  bad  as  being  in  the  alternative,®''  and  an 
allegation  that  the  affidavit  for  attachment  was  false, 
and  that  the  defendant  was  not  about  to  assign  or  dis- 
pose of  his  property  with  intent  to  defraud  his  creditors, 
will  be  sufficient.®^  An  application  by  one  of  the  de- 
fendants which  alleges  that  he  has  not  assigned,  dis- 
posed of  or  concealed  his  property  with  intent  to  defraud 
his  creditors  is  sufficient  to  cover  all  property  owned  by 
that  defendant,  whether  individually  or  jointly  with  a 
co-defendant.®'* 

The  application  need  not  be  entitled  in  the  cause." 

Form  of  Petition  for  Dissolution  of  Attacliment 

(Title  of  court  and  cause.) 

To  C.  E.,  Circuit  Court  Commissioner  for  the  County  of : 

The  petition  of  C.  D.,  the  defendant  in  the  above-entitled  cause,  respect- 
fully shows: 

1.  That  said  cause  was  commenced  by  writ  of  attachment,  issued  out  of 

47Jud.   Act,  ch.   26,   §48;    Comp.  Mich.     93.       See     also     Cottrell     v. 

Laws  1915,  §  13075;  Osborne  v.  Rob-  Hatheway,  108  Mich.  619. 

bins,    10    Mich.    277;    Patterson    r  61  Patterson  v.  Goodrich,  31  Mich. 

Goodrich,  31  Mich.  225.  225. 

48  Stock    V.    Reynolds,    121    Mich.  62  Cottrell  v.  Hatheway,  108  Mich. 
356.  619. 

49  Bane  v.  Keys,  115  Mich.  244.  63  Heyn  v.  Farrar,  36  Mich.  258. 
60  First  Nat.   Bank   v.   Steele,   81 


148  Attachment  §  56 

said  court  on  the day  of ,  A.  D ,  in  favor  of  the  said 

A.  B.,  as  plaintiff,  and  against  the  lands,  tenements,  goods,  chattels,  moneys 
and  effects  of  the  said  C.  D.,  defendant,  and  was  directed  and  delivered  to 
the  sheriff  of  said  county. 

2.  That  the  said  sheriff,  by  virtue  of  said  writ  of  attachment,  on  the 

day  of ,  A.  D ,  attached,  and  now  holds,  the  following 

described  property:    (Here  describe  the  property.) 

3.  That  said  property,  at  the  time  of  said  attachment  thereof,  as  aiore- 
said,  was,  and  now  is,  the  property  of  your  petitioner,  C.  D.,  the  defendant 
in  the  said  writ,  and  that  he,  the  said  C.  D.,  is  lawfully  entitled  to  the  pos- 
session of  the  same. 

4.  That  the  affidavit  for  the  said  writ  sets  forth  that  your  petitioner  has 
absconded,  etc.  (set  forth  the  ground  for  attachment  as  alleged  in  the 
affidavit),  but  that  said  affidavit  avers  no  other  cause  for  attachment  against 
your  petitioner. 

5.  That  your  petitioner  denies  that  he  has  absconded,  etc.  (deny  each 
and  every  cause  alleged  in  the  affidavit). 

Your  petitioner  therefore  prays  that  the  said  property  may  be  restored  to 
him. 

C.  D. 
State  of  Michigan,  | 
County    of I 

On  this day  of ,  in  the  year ,  before  me,  a ,  in 

and  for  said  county,  personally  appeared  the  above-named  petitioner,  C.  D., 
and  made  oath  that  he  has  read  (or,  has  heard  read)  the  foregoing  petition 
by  him  subscribed,  and  knows  the  contents  thereof,  and  that  the  same  is 
true  in  substance  and  in  fact. 


in  and  for  

County,  Mich. 

§57.  The  citation. 

Upon  the  presentation  of  an  application  for  the  disso- 
lution of  an  attachment,  it  is  the  duty  of  the  judge  or 
commissioner  to  issue  a  citation  to  the  plaintiff,  requir- 
ing him  to  show  cause,  on  a  day  and  at  a  time  and  place 
in  the  citation  to  be  named,  before  such  judge  or  com- 
missioner, why  the  attachment  should  not  be  dissolved 
and  the  property  be  restored  to  the  defendant."  Unless 
a  party  follows  up  his  application  with  a  citation,  his 
proceeding  Avill  be  considered  as  having  been  abandoned 
by  him.*"* 

64Jud.    Act,   ch.    26,    §49;    Comp.  65  Pearson    v.    Creslin,    16    Mich. 

Laws  1915,  §  13076.  281. 


§  59  Attachment  149 

Form   of    Citation    to    Show   Cause   Why   Attachment    Should   Not   Be 

Dissolved 
(Title  of  court  and  cause.) 

On  reading  the  petition  of  C  D.,  the  defendant,  duly  verified,  praying 
that  the  attachment  in  this  case  may  be  dissolved  and  the  property  attached 
by  virtue  thereof  restored  to  the  said  defendant  for  reasons  set  forth 
in  said  petition,  it  is  ordered  that  said  plaintiff  be,  and  he  hereby  is,  cited 

and  required  to  show  cause,  on  the   day  of ,  A.  D ,  at 

. . . .  o  'clock  in  the noon,  before  me,  at  my  office,  in  the of 

,  in  said  county,  why  said  attachment  should  not  be  dissolved  and 

the  said  property  restored  to  the  said  defendant. 

C.  R., 
Oireuit  Court  Commission- 
er for County. 

§  58. Service. 

The  citation  must  be  served  three  days  at  least  before 
the  return  day  thereof  by  delivering  a  copy  to  the  plain- 
tiff, or  to  either  of  them,  if  there  be  more  than  one,  if 
found  within  the  county,  and,  if  not,  then  it  may  be 
served  upon  the  agent  or  attorney  of  the  plaintiff,  by  the 
sheriff,  either  of  his  deputies,  or  any  constable  or  other 
person  authorized  by  the  judge  or  commissioner.^® 
Service  upon  the  attorney  for  the  plaintiff  is  sufficient, 
although  both  be  non-residents  of  the  county  in  which 
the  action  is  pending." 

It  has  been  held  that  at  least  three  secular  days  must 
intervene  between  the  day  of  service  and  the  return  day 
in  every  case.*^  An  intervening  Sunday  cannot  be 
counted." 

§59.  Hearing. 

On  the  return  day  of  the  citation,  or  at  such  other  day 
thereafter  as  the  judge  or  commissioner  appoints  for  the 

66Jud.   Act,  ch.   26,   §50;    Comp.  58  Dousman  v.  O'Malley,  1  Doug. 

Laws    1915,    §  13077.      The    Judica-  450,  holding  that  both  day  of  serv- 

ture   Act   changes   the   former  stat-  ice  and  day  for  showing  cause  must 

ute   by   providing   for    delivering   a  be    excluded.      But    see    article    on 

copy  of  the  citation  instead  of  serv-  Service  of  Papers;  Time. 

ice  by  reading  it.  69  Campfield    v.    Cook,    92    Mich. 

If  citation  is  defective,  the  entire  626;    First   Nat.   Bank   v.    Williams 

proceedings  will  be  quashed.  Milling  Co.,  110  Mich.  15. 

67  Cleland  v.  Clark,  111  Mich.  336. 


loO  Attachment  $^  59 

purpose,  lie  must  proceed  to  hear  the  proofs  and  allega- 
tions of  the  parties,  and,  if  he  be  satisfied  that  the  plain- 
tiff had  not  a  good  and  legal  cause  for  suing  out  the 
writ  of  attachment,  he  may  order  the  attachment  to  be 
dissolved  and  the  property  attached  to  be  restored  to 
the  defendant,  but  may,  at  his  discretion,  require  the  de- 
fendant to  enter  his  appearance  to  the  plaintiff's  action 
prior  to  the  dissolution  of  the  attachment.^"  The  term, 
^'attachment,"  as  here  used  is  applied  in  its  common  law 
sense  of  a  levy  or  seizure,  and  not  to  designate  the  writ 
under  which  the  seizure  is  made.^^ 

§  60.  Issue. 

The  issue  to  be  tried  and  determined  in  proceedings 
to  dissolve  an  attachment  is  wholly  distinct  from  the 
merits  of  the  attachment  suit.®^  Upon  the  facts  alleged 
in  the  affidavit  for  attachment  as  ground  for  the  writ 
being  denied  by  the  defendant  in  his  application,  it  is 
incumbent  upon  the  plaintiff,  in  order  to  sustain  his  levy, 
to  prove  the  truth  of  his  allegations.^^  Whether  the 
plaintiff  believed  or  had  good  reason  to  believe  the  facts 
charged  against  the  defendant  in  his  affidavit  for  the 
writ  is  not  in  issue  or  even  material  to  the  issue.  The 
inquiry  is  whether  the  charges  against  the  defendant  are 
true.^*  The  "good  and  legal  cause"  for  suing  out  the 
writ,  which  alone  can  sustain  the  attachment  on  the  hear- 
ing, must  be  a  cause  existing  in  fact,  and  not  merely  in 
the  belief  of  the  plaintiff,  however  well  founded  that  be- 
lief may  have  appeared  to  be.^^  The  inquiry  thus  in- 
cludes nothing  but  the  facts  or  the  sufficiency  of  the  affi- 
davit.   All  other  defects  in  the  proceeding  must  be  passed 

60  Jud.  Act,  ch.  26,  §  50 ;  Comp.  Michigan  Barge  Co.,  52  Mich.  164 ; 
Laws  1915,   §  13077.  Cottrell  v.  Hatheway,  108  Mich.  619. 

61  Hyde  V.  Nelson,  11  Mich.  353.  64Blanchard  v.  Brown,  42   Mich. 

62  Hyde  v.  Nelson,  11  Mich.  353;  46. 

Stock  V.  Eeynolds,  121  Mich.  356.  65  Folsom    v.    Teichner,    27    Mich. 

68  Genesee   County    Sav.    Bank    v.      107. 


§  62  Attachment  .  151 

upon  by  the  court,  and  not  by  the  judge  at  chambers  or 
the  commissioner.^^ 

Where  the  affidavit  alleges  that  the  defendant  has  done 
or  is  about  to  do  some  act  with  intent  to  defraud  his 
creditors,  the  issue  upon  dissolution  proceedings  includes 
not  only  the  question  whether  the  defendant  actually 
did  or  was  about  to  do  the  act  charged,  but  also  what 
was  the  intent  of  the  defendant  in  the  premises.^''^  If 
the  affidavit  makes  a  joint  charge  of  fraud  against  sev- 
eral defendants,  joint  action  or  intended  action  must  be 
shown.^' 

§  61.  Burden  of  proof. 

The  burden  of  proof  rests  upon  the  plaintiff  in  the  first 
instance  to  show  the  facts  necessary  to  sustain  the  at- 
tachment, and  not  upon  the  defendant  to  show  the  non- 
existence of  the  necessary  grounds.  If,  upon  the  hear- 
ing of  the  application,  neither  party  offers  any  evidence, 
it  is  the  duty  of  the  judge  or  commissioner  to  dissolve 
the  attachment.^®  The  plaintiff  must  satisfy  the  judge 
or  commissioner  that  the  writ  is  well  founded.''*' 

§  62.  Right  to  begin  evidence  and  open  argument. 

The  plaintiff,  holding  the  affirmative  and  having  the 
burden  of  proof,  has  the  right  to  begin  the  evidence.'^* 
And  from  this  it  follows  that  the  plaintiff  also  has  the 
right  to  open  and  close  the  arguments. 

66  Vinton  v.  Mead,  17  Mich.  388.  Iosco  County  Sav.  Bank  v.  Barnes, 

67  Hyde  v.  Nelson,  11  Mich.  353;  100  Mich.  1;  Carver  v.  Chapell,  70 
Parker  v.  Luce,  14  Mich.  9;  Gen-  Mich.  49;  Gore  v.  Eay,  73  Mich. 
esee  County  Sav.  Bank  v.  Michigan  385;  McMorran  v.  Moore,  113  Mich. 
Barge  Co.,  52  Mich.  164.  101;  Rickel  v.  Strelinger,  102  Mich. 

68Cottrell  v.  Hathaway,  108  Mich.  41;   Feldman  v.  Preston,  194  Mich. 

619.  352. 

69Macumber    v.    Beam,    22    Mich.  70  Brown   v.   Blanehard,  39  Mich. 

395;    Genesee  County  Sav.  Bank  v.  790. 

Michigan  Barge  Co.,  52  Mich.  164;  71  MacumlK-r    v.    Beam,    22    Mich. 

Powers   v.    O'Brien,   44    Mich.    317;  395. 


152  Attachment  §  63 

§63.  Evidence  and  determination. 

The  evidence  should  be  directed  to  the  points  in  issue, 
by  the  plaintiff,  to  establish  the  truth  of  the  charges  al- 
leged against  the  defendant  as  grounds  for  the  issuing 
of  the  writ  of  attachment,  and  by  the  defendant,  not  only 
to  disprove  such  charges,  but  also  to  establish,  in  the 
case  of  personalty  attached,  his  ownership  and  right  to 
the  possession  of  the  property  and  therefore  to  have  it 
restored  to  him,  and,  in  the  case  of  realty  attached,  his 
right  of  ownership  or  other  interest  in  the  land  sufficient 
to  entitle  him  to  apply  for  a  dissolution  of  the  attach- 
ment. 

A  defendant,  who  is  charged  with  being  about  to  re- 
move his  property  w^ith  intent  to  defraud  his  creditors, 
may  show  that,  when  the  attachment  was  served,  he  did 
not  know  he  was  owing  any  one,  for,  if  he  honestly  be- 
lieved he  had  no  creditors,  he  could  not  have  entertained 
any  design  to  defraud  them.'''^  Evidence  by  a  defendant 
that  a  part  of  the  property  attached  belonged  to  his  wife 
and  that  a  part  of  it  was  exempt  from  execution  is  proper 
to  rebut  alleged  fraud  in  disposing  of  and  concealing  the 
property.'* 

It  is  not  enough  for  the  plaintiff  to  show  that  the  de- 
fendant has  conveyed  his  property  by  deed  or  mortgage. 
If  the  defendant  has  done  this,  it  must  be  proved  to  have 
been  done  under  such  circumstances  as  to  warrant  the 
conclusion  that  he  actually  had  the  intent  to  defraud  in 
his  mind.'*  Where  the  w^rit  of  attachment  has  issued 
on  the  ground  that  the  debt  sued  for  was  fraudulently 
contracted,  the  plaintiff  must  show  not  only  a  fraudulent 
intent  on  the  part  of  the  defendant,  but  also  that  the 
fraud  extended  to  every  portion  of  the  debt;  and,  if  it 

72  Hyde  v.  Nelson,  11  Mich.  353;  74  First  Nat.  Bank  v.  Steele,  81 
Stock  V.  Reynolds,  121  Mich.  356;  Mich.  93;  McMorran  v.  Moore,  113 
Dimmock  v.  Cole,  130  Mich.  601.  Mich.  101;  Hyde  v.  Nelson,  11  Mich. 

73  Carver  v.  Chapell,  70  Mich.  49.  353. 


§  63  Attachment  153 

appears  that  any  part  of  the  debt  is  not  affected  by  the 
fraud,  the  attachment  will  be  dissolved.''^ 

The  rights  of  the  parties  upon  the  hearing  should 
stand  and  be  adjudicated  as  they  were  at  the  time  the 
proceedings  were  commenced,  unless  the  defendant,  by 
his  own  acts,  has  lost  his  right  to  the  possession  of  the 
property.  The  fact  that  the  property  has  been  subse- 
quently levied  upon,  either  by  an  execution  issued  upon 
a  judgment  recovered  by  the  plaintiff  in  the  attachment 
suit  or  by  some  other  execution  or  by  another  writ  of 
attachment,  will  therefore  not  preclude  the  defendant 
from  having  the  attachment  dissolved  and  an  unjust  im- 
putation of  fraud  removed,  although,  on  account  of  such 
subsequent  levy,  the  defendant  is  not  entitled  to  have 
the  property  restored  to  him.'^  The  fact  that  a  judg- 
ment has  been  rendered  in  favor  of  the  plaintiff  on  the 
merits  of  the  case  for  the  amount  of  the  debt  claimed  to 
be  due  can  in  no  manner  affect  the  right  of  the  defendant 
to  have  the  attachment  dissolved.''"'^ 

The  defendant  may  be  examined  as  to  his  intentions,'* 
and  it  may  be  shown,  as  bearing  upon  the  question  of 
fraud,  that  the  plaintiff  had  been  secured  by  collaterals.''* 

Although  the  fact  that  the  defendant  had  procured  the 
release  of  the  attached  property  by  giving  a  bond  to  the 
sheriff  under  the  provisions  of  the  statute  for  that  pur- 
pose would  preclude  him  from  having  the  attachment 
dissolved,**^  the  giving  of  a  bond  by  a  stranger  to  the 
suit,  from  whose  possession  the  property  was  taken  by 

V6  Estlow  V.  Hanna,  75  Mich.  219.  77  Gore  v.  Eay,  73  Mich.  385. 

76  Calvert,  etc.,  Pub.   Co.   v.  Drs.  78  Brown   v.   Blanchard,  39  Mich. 

K.  &  K.,  etc.,  Ass'n,  61  Mich.  336;  790;  Hyde  v.  Nelson,  11  Mich.  353. 

State    Bank    v.    Whittle,    41    Mich.  79  Brown   v.   Blancliard,   39   Mich. 

365;    Drs.    K.   &   K.,   etc.,   Ass'n  v.  790. 

Post  &  Tribune  Job  Printing  Co.,  58  80  Paddock  v.  Matthews,  3  Mich. 

Mich.   487;    Sheldon   v.    Stewart,   43  18. 
Mich.   574;    Schall  v.  Bly,  43  Mich. 
401. 


154  Attachment  §  63 

the  sheriff,  would  in  no  manner  affect  the  right  of  the 
defendant,  and  would  not  operate  as  a  waiver  of  his  right 
to  have  the  attachment  dissolved.^^ 

Form  of  Order  Dissolving  Attachment 

(Title  of  court  and  cause.) 
Application  in  writing  having  been  made  to  me  by  C  D.,  the  above-named 

defendant,  on  the day  of ,  A.  D ,  for  a  dissolution  of 

the  attachment  issued  in  this  cause  at  the  suit  of  A.  B.,  the  above-named 
plaintiff,  and  a  citation  having  been  issued  by  me  on  the  same  day,  requiring 

the  said  plaintiff  to  show  cause  before  me,  at  my  office,  in  the of 

,  in  said  county,  on  the day  of ,  A.  D ,  at  . . . . 

o  'clock  in  the  noon,  why  the  said  attachment  should  not  dissolved, 

and  the  property  attached  by  virtue  thereof  be  restored  to  the  said  C.  D., 
and  the  said  citation  having  been  duly  returned  to  me,  with  due  proof  of 
service  thereof  upon  said  plaintiff  three  days  or  more  before  the  return  day 
thereof,  and  the  said  parties  having  appeared  before  me  at  the  time  and 
place  aforesaid,  after  hearing  the  proofs  and  allegations  of  the  parties,  and 
being  satisfied  that  the  said  plaintiff  had  not  a  good  and  legal  cause  for 
suing  out  said  writ,  it  is  ordered  that  the  said  attachment  be,  and  the 
same  hereby  is,  dissolved,  and  that  the  property  attached  by  virtue  thereof 
be  restored  to  the  said  C.  D.,  the  above-named  defendant;  and  it  is  further 
ordered  that  the  said  plaintiff  pay  to  the  said  defendant  his  costs  of  the 
proceedings  had  before  me,  to  be  taxed,  and  that  the  said  defendant  hav« 
execution  therefor. 

J.  S., 
Circuit  Judge  (or,  Circuit  Court 
Commissioner  for  the  County 
of ). 

§  64.  Compelling  attendajice  of  witnesses. 

The  judge  or  commissioner  has  full  power  to  issue 
subpoenas,  and,  if  necessary,  attachments  to  compel  the 
attendance  of  witnesses  to  testify  in  proceedings  of  this 
kind.82 

§65.  Costs. 

The  judge  or  commissioner  may  in  his  discretion  re- 
quire the  party  moving  for  the  dissolution  of  an  attach- 
ment to  give  security  for  the  costs  of  the  proceedings, 

M  Pierce    v.    Johnson,    9.T     Mich.  82  Jud.   Act,   eh.   26,    §51;    Comp. 

125;  Ripon  Knitting  Works  v.  John-       Laws  1915,  §  13078. 
son,  93  Mich.  129. 


§  67  Attachment  155 

and  may  order  the  costs  of  the  proceedings  to  be  paid 
by  the  party  against  whom  the  decision  is  rendered  in 
the  premises,  and  may  issue  execution  therefor  return- 
able in  sixty  days  from  its  date.®' 

§  66.  Effect  of  dissolution. 

The  effect  of  the  dissolution  of  an  attachment  is  to 
release  the  property  attached.  It  also  entitles  the  de- 
fendant to  the  immediate  restoration  of  the  property, 
unless,  in  the  interval  between  the  attachment  and  the 
order,  his  right  to  have  it  restored  to  him  has  been  lost, 
as  by  his  voluntary  alienation  of  the  possessory  right 
or  by  a  levy  under  some  other  writ.  The  dissolution  of 
an  attachment  after  the  writ  has  been  personally  served 
upon  the  defendant,  or  the  defendant  has  appeared  in 
the  suit,  will  not  abate  the  suit,  but  the  plaintiff  may 
proceed  to  a  personal  judgment  against  the  defendant 
in  the  same  manner  as  if  the  suit  had  been  commenced 
by  summons.  If,  however,  the  order  of  dissolution  is 
made  before  the  defendant  has  appeared,  and  the  writ 
has  not  been  personally  served  upon  him,  the  effect  will 
be  to  terminate  the  suit,  unless  the  judge  or  commis- 
sioner sees  fit  to  require  the  defendant  to  enter  his  ap- 
pearance to  the  plaintiff's  action  prior  to  the  dissolu- 
tion.®* 

The  order  dissolving  an  attachment  does  not  affect  the 
rights  of  third  parties,  who,  by  execution  or  attachment 
levies  or  other  means,  have  acquired  an  interest  in  the 
property.®^ 

§  67.  Restoration  of  property. 

When  an  order  of  dissolution  is  made  and  has  been 
properly  brought  to  the  notice  of  the  officer  holding  the 

83  Jud.   Act,  ch.  26,    §  51 ;    Comp.  86  State  Bank  v.  Wliittle,  41  Mich. 

Laws   1915,   §13078;    Linn   v.   Eob-  365;    Drs.   K.  &   K.,  etc.,   Ass'n  v. 

erts,  15  Mich.  443.  Post    &    Tribimr>    .loJi    Printincr   Co., 

SiBowen  v.  Town,  12  Midi.  229;  5S  Midi.    IH7. 
Hyde  V.  Nelson,  11   Midi.  35.'i, 


156  Attachment  §  67 

property,  it  is  his  duty  to  give  it  up  to  the  person  en- 
titled to  receive  it;  but  whether  he  does  so  or  not  is  no 
concern  of  the  plaintiff.  It  is  the  business  of  the  de- 
fendant to  see  to  the  enforcement  of  the  order  of  re- 
storation which  he  has  procured.'^ 

§  68.  Appeal  from  order  of  commissioners. 

Either  party  conceiving  himself  aggrieved  by  the  de- 
termination, order  or  judgment  of  any  circuit  court  com- 
missioner may  appeal  therefrom  to  the  ''judge"  of  the 
circuit  court  for  the  same  county,  and  a  return  may  be 
compelled  and  the  same  proceedings  will  be  thereupon 
had,  as  near  as  may  be,  and  with  the  like  effect,  as  in 
cases  of  appeal  from  judgments  rendered  before  justices 
of  the  peace,  and  costs  will  be  awarded  and  collected  in 
the  circuit  court  in  the  same  manner. 

On  perfecting  such  appeal,  the  attachment  proceed- 
ings and  the  levy  thereunder  continue  in  the  same  con- 
dition and  of  the  same  force  and  validity  as  when  the 
proceedings  for  a  dissolution  of  the  attachment  were 
commenced.  The  officer  executing  the  attachment  will 
continue  to  have  the  same  rights  and  duties  under  the 
attachment  as  regards  the  property  attached  as  if  the 
dissolution  proceedings  had  never  been  commenced.  Any 
order  or  judgment  made  by  the  commissioner  dissolv- 
ing the  attachment  will  have  no  force  or  effect  to  re- 
lease the  attached  property  until  it  has  been  affirmed  by 
the  circuit  judge,  if  appealed  from,  and  no  such  order 
can  be  issued  in  any  case  by  the  commissioner  until  the 
expiration  of  five  days  after  making  it.  The  circuit 
judge  will  have  full  power  and  jurisdiction  over  the 
cause  and  proceedings  to  hear  and  determine  it  and 
render  judgment  therein,  as  if  the  proceedings  had  been 
originally  commenced  before  him.^''' 

86Blanchard   v.   Brown,   42   Mich.  87  Jud.   Act,   ch.   26,   §52;    Comp. 

46.  Laws  1915,  §  13079.    The  Judicature 


§  70  Attachment  157 

§  69.  Effect  of  judgment  in  suit. 

The  recovery  of  a  judgment  in  the  attachment  suit 
and  the  levy  of  an  execution  by  the  plaintiff  upon  the 
attached  property  pending  an  appeal  from  an  order  of 
a  commissioner  dissolving  the  attachment  will  not  affect 
the  right  of  the  defendant  to  have  the  appeal  disposed 
of  on  its  merits.®^ 

§  70.  Review  by  certiorari. 

The  constitution  of  this  state  confers  upon  the  circuit 
courts  a  general  supervisory  control,  subject  to  the  ap- 
pellate jurisdiction  of  the  supreme  court,  over  inferior 
courts  and  tribunals,  and  they  may  issue  a  common  law 
certiorari  to  bring  up  for  review  proceedings  before  a 
circuit  court  commissioner  for  the  dissolution  of  an  at- 
tachment.®^ A  writ  of  certiorari  may  also  issue  from  the 
supreme  court  to  bring  up  such  proceedings  for  review, 
whether  from  a  circuit  court  commissioner  or  from  a 
circuit  judge. 

When  the  proceedings  are  reviewed  on  certiorari,  only 
questions  of  law  will  be  considered.  Questions  of  fact 
will  not  be  reviewed.  The  testimony  will  not  be  weighed 
or  the  credibility  of  witnesses  passed  upon.  The  appel- 
late court  will  not  review  the  decision  of  the  judge  or 
commissioner  on  the  testimony,  unless  there  is  an  entire 
absence  of  proof  on  some  material  point  to  support  his 
decision.^"  Where  there  is  some  evidence  tending  to  sup- 
port the  decision  of  the  judge  or  commissioner,  his  find- 
ing is  conclusive.^^ 

Act   eliminates   the   right   to   a  jury  Michigan  Barge  Oo.,  52  Mich.  164; 

trial.     The  appeal  is  to  a  judge  and  Rowc  v.  Kellogg,  54  Mich.  206;  Pow- 

not  to  the  court.  ers  v.  O'Brien,  44  Mich.  317;  Schall 

88  Calvert,  etc.,  Pub.  Co.  v.  Drs.  v.  Bly,  43  Mich.  401;  State  Bank 
K.  &  K.,  etc.,  Ass'n-  61  Mich.  336;  v.  Whittle,  41  Mich.  365;  Linn  v. 
Gore  V.  Ray,  73  Mich.  385.  Roberts,  15  Mich.  443. 

89  People  v.  St.  Clair  Circuit  81  Sheldon  v.  Stewart,  43  Mich. 
Judge,  32  Mich.  95.  574;    Lord   v.   Wirt,   96   Mich.   415; 

90  Genesee    County    Sav.    Bank    v.  Hyde  v.  Nelson,  11  Mich.  353. 


158  Attachment  §  70 

Rulings  upon  the  admission  of  evidence  will  not  be 
considered  upon  certiorari,®^  unless  material  evidence 
has  been  excluded  which  might  have  effected  a  different 
result.®' 

§  71.  Review  by  writ  of  error  or  mandamus. 

The  proceeding  to  dissolve  an  attachment  being  a 
special  proceeding  under  the  statute,  and  not  according 
to  the  course  of  the  common  law,  a  writ  of  error  will  not 
lie  to  review  the  decision  of  a  circuit  judge  upon  appeal 
from  a  circuit  court  commissioner.®*  Certiorari  is  the 
appropriate  remedy.  Mandamus  is  not  a  proper  rem- 
edy.®* 

VII.  Judgment  ajid  Execution 

§72.  Statutory  provisions. 

The  statutes  provide  that  if  the  attachment  is  per- 
sonally served  or  defendant  appears,  judgment  shall  be 
rendered  and  execution  shall  issue  in  the  same  manner 
and  with  the  like  effect  as  in  a  suit  commenced  by  sum- 
mons, except  that  the  officer  may  sell  any  of  the  attached 
property  in  the  hands  of  the  officer  serving  the  attach- 
ment, wherever  it  may  be  in  the  state;  but  that  if  de- 
fendant is  not  personally  served  and  does  not  appear,  the 
judgment  shall  not  be  conclusive  against  the  defendant 
and  the  execution  can  only  authorize  the  officer  to  sell 
the  property  attached  in  the  suit.  In  the  latter  case, 
the  attorney  issuing  the  execution  must  indorse  it  or 
annex  a  description  of  the  property  attached,  so  as  to 
prevent  a  levy  on  other  property.®^ 

92SchaU    V.   Ely,    4.1    Mich.    401;  94  Gore  v.  Ray,  69  Mich.  114;  Gray 

Carver    v.    Chapell,    70    Mich.    49;  v.  York,  44  Mich.  415. 

Lord  V.  Wirt,  96  Mich.  415.  96  S.    K.    Martin    Lumber    Co.    v. 

93  McMorran  v.  Moore,  113  Mich.  Menominee  Circuit  Judge,  116  Mich. 

101;    Genesee  County  Sav.  Bank  v.  ;554. 

Michigan  Barge  Co.,  52  Mich.   164;  96  Jud.     Act,     ch.     26,     §§25-28; 

Parker  v.  Luce,  14  Mich.  9.  Comp.  Laws  1915,  §§  13052-13055. 


§  73  Attachment  159 

The  amount  recoverable  is  not  limited  by  the  amount 
sworn  to  be  due  in  the  affidavit.*''^ 

Where  there  is  no  personal  service  and  no  notice  and 
the  affidavit  is  insufficient,  it  has  been  held  that  the 
judgment  is  void,*®  and  also  where  it  does  not  show  that 
the  notice  was  served  as  required  by  the  statute.**  Judg- 
ment by  default  cannot  be  rendered  until  all  conditions 
precedent  are  strictly  complied  with.^ 

When  the  defendant  is  a  non-resident,  and  had  no 
notice  of  the  proceeding  in  time  to  enable  him  to  make 
his  defense  in  season,  and  has  been  guilty  of  no  laches, 
the  court,  in  the  exercise  of  a  sound  discretion,  may  set 
aside  the  judgment  and  permit  him  to  plead,  even  though 
a  term  of  the  court  has  elapsed  since  the  judgment  was 
entered.^  And  where  a  non-resident  defendant,  on  learn- 
ing of  the  proceedings,  had  engaged  an  attorney  to  de- 
fend, but  the  attorney  neglected  to  do  so,  and  the  de- 
fendant himself  was  guilty  of  no  laches,  on  affidavit 
showing  these  facts,  and  that  he  had  a  meritorious  de- 
fense to  the  action,  the  judgment  and  subsequent  pro- 
ceedings therein  were  set  aside,  and  the  defendant  was 
permitted  to  defend.^ 

VIII.  Wrongful  Attachment 

§  73.  Liability  for  damages. 

Plaintiff  in  attachment,  while  he  may  be  liable  for 
acts  of  the  levying  officer,  directed  or  approved  of  by 
him,  is  not  liable  for  acts  of  the  officer  in  failing  to  per- 
form his  duty.*  Thus,  he  is  not  liable  for  the  act  of  the 
officer  in  detaining  the  property  after  dissolution  of  the 

That  execution,  where  attachment  98  King  v.  Harrington,  14  Mich, 
is    on    substituted    service,    can    be      522. 

levied  only  on  property  attached,  see  99  Adams  v.  Abram,  .38  Mich.  304. 

also  Peterson  v.  Swenningston,  178  1  Woolkins  v.  Haid,  49  Mich.  299. 

Mich.  294,  and  see  as  to  creditor's  2  Hurlburt  v.  Keed,  5  Mich.  30. 

suit,  Bliss  V.  Tyler,  159  Mich.  502.  8  Loree  v.  Reeves,  2  Mich.  133. 

97  Pew  V.  Yoare,  12  Mich.  16.  4  Michels  v.  Stork,  44  Mich.  2. 


160  Attachment  §  73 

writ.^  Where  there  was  no  probable  cause  for  issuing 
a  writ  of  attachment  against  property,  the  party  whose 
property  was  attached  may  sue  for  damages  for  malicious 
prosecution  of  the  writ.^  In  determining  the  damages 
from  a  wrongful  levy  of  attachment,  the  good  or  bad 
faith  of  plaintiff  in  issuing  the  writ  is  immaterial.' 

ATTORNEY  GENERAL 

It  is  the  duty  of  the  attorney  general  to  prosecute  and 
defend  all  actions  in  the  supreme  court  in  which  the  state 
is  interested  or  is  a  party,  and,  when  requested  by  the 
governor  or  either  branch  of  the  legislature,  to  appear 
for  the  people  of  the  state  in  any  other  court  or  tribunal 
in  any  cause  or  matter,  civil  or  criminal,  in  which  the 
people  of  this  state  may  be  a  party  or  interested;  ^  he 
may,  at  any  stage  of  the  proceeding,  intervene  in  any 
action  in  any  court  of  the  state  where  necessary  to  pro- 
tect any  right  or  interest  of  the  state  or  its  people,  and, 
in  such  case,  he  shall  have  the  same  right  to  appeal,  to 
apply  for  a  rehearing  or  to  take  any  other  action  as  any 
other  party  to  the  proceeding;^  also,  at  the  request  of 
the  governor,  the  secretary  of  state,  the  treasurer  or  the 
auditor  general,  to  prosecute  and  defend  all  suits  relat- 
ing to  matters  connected  with  their  departments.^  It 
is  also  his  duty,  when  required,  to  give  his  opinion  upon 
all  questions  of  law  submitted  to  him  by  the  legislature, 

B  Blanchard  v.  Brown,  42  Mich.  46.  prosecuted  in  Ingham  county  circuit 

6  See  Kompass  v.  Light,  122  Mich.  court  and  process  issued  in  such  case 
86.     See  also  Abuse  of  Process.  may  be  served  anywhere  in  the  state. 

7  Brown  v.  Spiegel,  167  Mich.  Pub.  Acts  1919,  No.  232,  p.  418. 
645,  where  measure  of  damages  is  See  also  Certiorari;  Habeas  Cor- 
also  discussed.  pus;  Mandamus;  Quo  Warranto. 

IHow.  Stat.  (2nd  ed.)  612;  Comp.  2  Pub.  Acts  1919,  No.  232,  p.  418. 

Laws  1897,  §  104;  Comp.  Laws  1915,  3  How.  Stat.  (2nd  ed.)  613;  Comp. 

§  132.    Actions  at  law  by  him  on  be-  Laws  1897,  §  105;  Comp.  Laws  1915, 

half  of  the  state  may  be  begun  and  §  133. 


Attorneys  161 

or  by  either  branch  thereof,  or'by  the  governor,  auditor 
general,  treasurer  or  any  other  state  officer.* 

The  attorney  general  receives  an  annual  salary  of  five 
thousand  dollars,  but  he  is  entitled  to  receive  no  fees  or 
perquisites  whatever  for  the  performance  of  any  duties 
connected  with  his  office.^ 

Before  entering  upon  the  execution  of  his  office  and 
within  twenty  days  after  receiving  official  notice  of  his 
election  or  appointment,  or  within  twenty  days  after  the 
commencement  of  the  term  of  service  for  which  he  was 
elected  or  appointed,  he  must  take  and  subscribe  the 
oath  of  office  prescribed  in  the  sixteenth  article  of  the 
constitution  of  the  state,  and  deposit  it  with  the  secre- 
tary of  state  whose  duty  it  is  to  file  and  preserve  it  in 
his  office.^ 

The  constitution  of  the  state  requires  the  attorney  gen- 
eral to  keep  his  office  at  the  seat  of  government.'' 

The  term  of  office  of  the  attorney  general  is  two  years,' 
and  commences  on  the  first  day  of  January  of  every 
second  year,  counting  from  the  year  1853. 

Whenever  a  vacancy  occurs  in  the  office,  it  is  filled  by 
appointment  by  the  governor,  by  and  with  the  advice 
and  consent  of  the  senate,  if  in  session.* 

ATTORNEYS 

S  1.  As  oflScer  of  court. 

§  2.  Necessity  for,  and  right  to  appear  by  attorney. 

§  3.  Admission  to  bar. 

§  4.  Removal  or  suspension. 

I  5.  Warrant  of  attorney  to  appear  for  client. 

§  6.  Privilege  from  arrest  or  service  with  process. 

§  7.  Exemption  from  service  as  jurors. 

§  8.  Privilege  in  use  of  language. 

4  How.  Stat.  (2nd  ed.)  616;  Comp.  Laws  1897,  §  I.'jO;  Comp.  Laws  lOl.'j, 

Laws  1897,  §  108;  Comp.  Laws  1915,  §  18.3. 

§  136.  7  Const.  Art.  VI,  sec.  1. 

6  Const.  Art.  VI,  sec.  21.  8  Const.  Art.  VI,  sec.  1. 

6  How.  Stat.  (2nd  ed.)  707;  Comp.  9  Const.  Art.  V,  sec.  10. 
1  Abbott— 11 


162  Attorneys  §  1 

§    9.  Waiver  of  privileges. 

§  10.  Disqualification  to  become  bail. 

§  11.  Prohibition  against  purchase  of  choses  in  action  for  certain  purposea. 

§  12.  Maintenance  in  general. 

§  13.  Permitting  use  of  name. 

§  14.  Administering  oaths  in  their  own  cases. 

§  15.  Miscellaneous  statutory  liabilities. 

§  16.  Malpractice. 

§  17.  Lien. 

§  18.  Settlement  between  parties  after  judgment. 

§  19.  Substitution  of  attorneys. 

§  20.  By  consent. 

§21.  Application  for. 

§  22.  Notice  of   order  for, 

§  23.  Substitution  because  of  death,  removal,  etc.,  of  attorney. 

Cross-Eeferences:  Agency  (attorneys  of  fact) ;  Evidence  (confidential 
communications);  Workmen's  Compensation  Act;  Stipulations;  Seev- 
ICE  OF  Papers  (mode  of  serving  papers  on  attorneys) ;  Judges  (right  to 
practice  law) ;  Trial  (conduct  at  the  trial) ;  Contempt. 

§  1.  As  officer  of  court. 

An  attorney  at  law  ^  is  an  officer  of  the  court  in  whicli 
he  is  admitted  to  practice.^  Formerly  a  practitioner  ap- 
pearing in  a  court  of  chancery  was  called  a  solicitor 
but  now  the  Judicature  Act  expressly  provides  that  all 
licensed  practitioners  shall  be  designated  ' '  attorneys  and 
counselors."^ 

§  2.  Necessity  for,  and  right  to  appear  by  attorney. 

The  Constitution  of  Michigan  provides  that  any  suitor, 
in  any  court  of  the  state,  shall  have  the  right  to  prose- 
cute or  defend  his  suit,  either  in  his  own  proper  person, 
or  by  an  attorney  or  agent  of  his  choice.*    It  has  been 

1  Definition,  see  People  v.  May,  3  Statutes  also  so  provide.  Jud. 
Mich.  605.                                                       Act,  ch.  4,   §14;   Comp.  Laws  1915, 

2  In  re  Mains,  121  Mich.  603.  §  12261. 

However,  he  is  not  a  public  officer.  Industrial  Accident  Board  is  not  a 

Sloman  v.  Bender,  189  Mich.  258.  "court"      within      this      provision. 

8  Jud.    Act,    ch.    1,    §48;    Comp.  Mackin  v.  Detroit-Timkin  Axle  Co., 

Laws  1915,   §  12053.  187  Mich.  8. 

4  Const.  1908,  Art.  II,  sec.  12. 


§  3  Attorneys  163 

held  by  the  supreme  court,  that  the  word  "agent"  as 
used  in  the  constitution,  is  synonymous  with  the  word 
'* attorney,"  and  that  a  party  cannot  appear  in  a  court 
of  record  by  an  agent,  who  is  not  an  attorney  duly 
licensed  to  ])ractice.^  The  legislature  has  provided  that 
every  person  of  full  age  and  sound  mind,  may  appear 
by  attorney  or  solicitor,  as  the  case  may  require,  in  every 
action  or  plea  by  or  against  him,  in  any  court,  or  may, 
at  his  election,  prosecute  or  defend  such  action  or  plea 
in  person;  but  this  provision  shall  not  extend  to  criminal 
cases,  nor  shall  any  person  be  permitted  to  appear  on 
the  record  in  any  civil  cause  in  person,  whilst  he  has  an 
attorney  or  solicitor  in  such  case.^ 

§  3.  Admission  to  bar. 

Any  person  of  legal  age,  of  either  sex,  who  is  a  resi- 
dent and  citizen  of  the  United  States,  and  who  has  had 
the  general  education  specified  in  section  fifty-three  of 
chapter  one  of  the  Judicature  Act,  and  who  is  of  good 
moral  character,  may,  on  motion  made  in  the  supreme 
court  or  in  any  circuit  court,  be  admitted  to  practice  as 
an  attorney  and  counselor  in  all  the  courts  of  record  of 
this  state,  but  the  applicant  must  first  produce  the  regu- 
lar certificate  from  the  Board  of  Law  Examiners.  This 
certificate  is  issued  upon  the  required  examination  hav- 
ing been  passed  by  the  applicant  and  should  state  that 
the  applicant  possesses  sufficient  learning  in  the  law, 
good  moral  character  and  ability  to  enable  him  properly 
to  practice  as  an  attorney  and  counselor  'in  the  courts 
of  this  state.''^    Every  person  licensed  to  practice  as  an 

B  Cobb  V.  Juflgc  of  Superior  Court,  Corporations  and  voluntary  associ- 

43   Mich.  289.  ations  are  expressly  prohibited  from 

6Jud.    Act,    ch.    4,     §14;    Comp.  practicing  law.    Pub.  Acts  1917,  No. 

Laws  1915,  §  12261.  354. 

7Jud.    Act,    ch.    1,    §52;     Comp. 
Laws  1915,  §  12057. 


164 


Attorneys 


§3 


attorney  and  counselor  in  the  supreme  court  is  entitled 
to  practice  in  every  other  court  of  law  in  this  state.' 

Practicing  attorneys  who  are  not  residents  of  this  state 
may  be  admitted  on  motion  to  try  specific  cases  in  any 
of  the  courts  of  this  state  by  such  court,  but  cannot  be 
admitted  to  general  practice  of  law  in  this  state  without 
complying  with  the  same  conditions  required  of  other 
persons.® 

The  board  of  examiners  is  a  body  composed  of  five 
members,  appointed  by  the  governor  on  the  nomination 
of  the  supreme  court.  The  teiTQ  of  office  of  the  members 
of  the  board  is  five  years,  but  they  are  so  classified  that 
the  term  of  one  expires  each  year.  The  board  is  required 
to  meet  at  the  capitol,  in  the  City  of  Lansing,  at  least 
once  in  each  year  during  the  session  of  the  supreme 
court,  and  also  at  other  times  and  places  in  the  state,  if 
the  supreme  court  shall  so  direct.^®  Three  members  of 
the  board  constitute  a  quorum  for  the  transaction  of 
business."  The  board  examines  all  applicants  for  ad- 
mission to  the  bar  as  to  their  general  education,  legal 
learning  and  general  qualifications  to  practice  in  the  sev- 
eral courts  of  this  state  as  attorneys  and  counselors.  K 
the  applicant  passes  the  required  examination,  the  board 
issues  to  him  a  certificate  of  qualification,  stating  his 
standing  and  recommending  his  admission  to  the  bar." 

The  examination  is  conducted  by  the  board  ac- 
cording to  such  rules  and  regulations  as  it  deems  proper 
to  establish.  The  applicant  is  required  to  submit  to  a 
written  examination  prepared  by  the  board,  and  also  to 
such  oral  examination  as  the  board  may  think  proper, 
upon  subjects  determined  by  them.*^    The  secretary  of 


8  Jud.    Act,    ch.    1,    §  57 ;    Comp. 
Laws  1915,  §  12062. 

9  Jud.    Act,    ch.    1,    §49;     Comp. 
l.:i\vs  1915,  §12054. 

10  Jud.    Act,    ch.    1,    §51;    Comp. 
Laws   1915,   §  12056. 


11  Jud.  Act,  ch.  1,  §  51 ;  Comp. 
Laws  1915,  §  12056. 

18  Jud.  Act,  eh.  1,  §51;  Comp. 
Laws  1915,  §  12056. 

13  Jud.  Act,  ch.  1,  §53;  Comp. 
Laws  1915,  §  12058. 


§  4  Attorneys  165 

the  board  furnishes  each  applicant  with  a  card,  showing 
the  proficiency  the  applicant  has  attained  in  each  branch 
or  subject  upon  which  he  has  been  examined,  whether 
a  certificate  is  issued  or  not." 

If  the  applicant  fails  to  pass  at  any  examination,  he 
may  again  apply  after  six  months  by  showing  to  the 
board  that  he  has  diligently  pursued  the  study  of  the  law 
six  months  prior  to  the  examination.  No  extra  fee  is 
required  for  the  second  examination.^'^ 

A  person,  when  admitted  to  the  bar,  becomes  an  of- 
ficer of  the  court  and  subject  to  its  summary  jurisdic- 
tion. Such  officers  are  as  essential  to  the  successful 
working  of  the  court  as  the  clerks  and  sheriffs,  and  per- 
haps as  the  judges  themselves.  They  are,  for  the  con- 
venience, not  only  of  themselves,  but  of  the  other  offi- 
cers of  the  court,  clothed  with  certain  privileges,  an  abuse 
of  which  may  be  visited  with  severe  punishment.^^ 

§  4.  Removal  or  suspension. 

It  is  provided  by  statute  that  attorneys  and  counselors 
may  be  removed  or  suspended  by  the  supreme  or  circuit 
courts  in  which  they  are  authorized  to  practice,  for  de- 
ceit, malpractice,  crime  or  misdemeanor.^'  But  the  author- 
ity of  the  courts  to  remove  or  suspend  an  attorney,  when 
guilty  of  any  deceit,  malpractice  or  crime,  exists  inde- 
pendently of  the  statutory  provision,  and  the  court  may 
remove  or  suspend  an  attorney  for  other  causes  than 
those  mentioned  in  the  statute.  The  statute  is  not  re- 
strictive of  the  general  powers  of  the  court  over  its  offi- 
cers." 

The  person  to  be  removed  or  suspended  must  be  fur- 

14Jud.    Act,    ch.    1,    §54;    Comp.  17  Jud.    Act,    ch.     1,     §§58,    59; 

Laws  1915,  §  12059.  Comp.  Laws  ^1915,   §§  12063,  12064. 

16  Jud.    Act,    ch.    1,    §54;    Comp.  Soe  In  re  Eadford,  168  Mich.  474. 

I.invs  1915,  §12059.  18  In  lo  Mills,  1  Mich.  392. 

16  Potter  V.  Hutchinson  Mfg.  Co., 

87  Midi.  r,n. 


166  Attorneys  §  4 

nished  with  a  copy  of  the  charges  against  him  by  the 
clerk  of  the  court  in  which  the  proceedings  are  intended 
to  be  taken,  and  he  must  be  given  an  opportunity  to  be 
heard  in  his  defense."  These  proceedings,  although  not 
strictly  a  criminal  prosecution,  have  that  nature,  and 
the  charges  preferred  must  be  clearly  supported  by  the 
evidence  to  warrant  a  conviction,^"  When  an  attorney 
is  tried  for  any  other  misconduct  than  a  contempt,  it  can 
be  done  only  on  specific  charges,  and  an  opportunity  for 
a  full  defense  must  be  afforded  so  that  there  may  be,  if 
necessary,  a  resort  to  an  appellate  court  to  determine 
their  legal  sufficiency.^^ 

The  removal  or  suspension  of  an  attorney  or  counselor 
by  any  court  of  competent  jurisdiction  operates  as  a  re- 
moval or  suspension  in  every  court  of  the  state.^^  A 
person  who,  while  such  removal  or  suspension  is  in  effect, 
practices  law  or  engages  in  the  law  business,  holds  him- 
self out  as,  or  represents  himself  to  be,  authorized  to 
practice  in  any  of  the  courts  of  this  state,  is  guilty  of  a 
misdemeanor  punishable  by  fine  or  imprisonment  or 
both.23 

§  5.  Waxrant  of  attorney  to  appear  for  client. 

When  a  party  appears  by  attorney  there  is  always  sup- 
posed to  be  a  warrant  in  writing  executed  by  him  for 
that  purpose,''*  but  the  practice  of  giving  or  filing  war- 
rants of  attorney  never  prevailed  in  this  state,^^  and  is 

19Jud.    Act,    ch.    1,    §59;    Comp.  561;  In  re  Chandler,  105  Mich.  235. 

Laws  1915,  §  12064.    See  In  re  Had-  22  Jud.    Act,    ch.    1,    §60;    Comp. 

ford,  168  Mich.  474.  Laws  1915,  §12065;  Cobb  v.  Judge 

20  In  re  Baluss,  28  Mich.  507 ;  In  of  Superior  Court,  43  Mich.  289. 

re  Wool,  36  Mich.  299;  In  re  Mills,  23  Jud.  Act,  ch.   1,  §§60,  61    (as 

1  Mich.  392;  Dickinson  v.  Dustin,  21  amended    by    Pub.    Acts    1919,    No. 

Mich.  565;  In  re  Shepard,  109  Mich.  314,  p.  552),  62;   Comp.  Laws  1915, 

631;   In  re  Clink,  117  Mich.   619.  §§12065-12067. 

Jury    trial    cannot    be    demanded.  24iSteph.  PI.  62. 

In  re  Shepard,  109  Mich.  631.  25  Farmers'  &  Mechanics'  Bank  v. 

21  Dickinson    v.    Dustin,   21   Mich.  Troy  City  Bank,  1  Doug.  457. 


§  6  Attorneys  167 

by  statute  expressly  declared  to  be  unnecessary.^^  The 
authority  of  an  attorney  to  appear  and  act  in  a  cause  or 
matter  for  a  party  whom  he  purports  to  represent  is  in 
general  presumed,  and  the  presumption  is  a  conclusive 
one  where  the  judgment  in  such  cause  or  matter  is  at- 
tacked collaterally.^'' 

§  6.  Privilege  from  arrest  or  service  with  process. 

Any  attorney  engaged  in  any  suit  or  proceeding  in  any 
court  of  record  of  this  state  is  exonerated  from  arrest  in 
any  civil  suit  while  going  to  the  place  where  he  is  re- 
quired to  attend,  while  in  attendance  and  while  return- 
ing therefrom;  and  when  such  attendance  is  without  the 
county  of  the  residence  of  such  attorney,  he  is  exempt 
from  the  service  of  any  civil  process  in  any  suit  com- 
menced in  the  county  where  he  is  so  in  attendance;  but 
all  other  officers  of  the  several  courts  of  record  are  liable 
to  arrest  and  may  be  held  to  bail  in  the  same  manner 
as  other  persons,  except  while  in  attendance  upon  an 
actual  sitting  of  the  court  of  which  they  are  officers  or 
while  going  to,  or  returning  from,  such  sitting.^*  If  an 
attorney  be  arrested  when  exempt  from  arrest  and  de- 
sires to  take  advantage  of  his  privilege,  an  application 
should  be  made  to  the  court  which  issued  the  process,  or 
to  the  court  in  which  he  is  employed,  for  an  order  direct- 
ing his  release  forthwith.  This  order,  when  obtained, 
should  be  served  upon  the  person  having  custody  of  the 
attorney.  When  the  order  has  been  so  served,  the  at- 
torney is  entitled  to  his  immediate  liberty. 

26  Jud.    Act,    ch.    13,    §1;    Comp.  the   common-law   privilege   of   attor- 
Laws  1915,  §  12404.  neys  from  service  of  process  while 

27  Corbitt  v.  Timmerman,  95  Mich.  attending    court.      Hoffman    v.    Bay 
581 ;  Dunlap  v,  Byers,  110  Mich.  109.  Circuit  Judge,   113  Mich.   109. 

28  Jud.  Act,  ch,  13,  §  43 ;   Comp.  See  also  Commencement  op  Ao- 
Laws  1915,   §  12446.  tions. 

But  this  statute  does  not  remove 


168  Attorneys  §  7 

§  7.  Exemption  from  service  as  jurors. 

Attorneys  and  counselors  are  exempt  from  serving  as 
jurors.^ 

§  8.  Privilege  in  use  of  language. 

Attorneys  are  entitled  to  a  great  latitude  in  the 
choice  of  statements  and  language  employed  in  the 
course  of  judicial  proceedings  under  their  management. 
Words  spoken  in  the  course  of  judicial  proceedings, 
though  they  are  such  as  impute  crime  to  another,  and, 
therefore,  if  spoken  elsewhere,  would  import  malice  and 
be  actionable  per  se,  are  not  actionable  if  they  are  ap- 
plicable and  pertinent  to  the  subject  of  inquiry.  The 
question  in  such  cases  is  not  whether  the  words  spoken 
are  true  nor  whether  they  are  actionable  in  themselves, 
but  whether  they  were  spoken  in  the  course  of  judicial 
proceedings  and  whether  they  are  relevant  or  pertinent 
to  the  cause  or  subject  of  inquiry,  and,  in  determining 
what  is  pertinent,  much  latitude  must  be  allowed  to  the 
judgment  and  discretion  of  those  who  are  interested  in 
the  conduct  of  a  cause  in  court.^°  Still  this  privilege  must 
be  restrained  by  some  limit,  and  this  limit  has  been  well 
stated  to  be  this:  that  a  party  or  counsel  shall  not  avail 
himself  of  his  situation  to  gratify  private  malice  by  ut- 
tering slanderous  expressions,  either  against  a  party, 
witness  or  third  person,  which  have  no  relation  to  the 
cause  or  subject-matter  of  the  inquiry.  Subject  to  this 
restriction,  it  is,  on  the  whole,  for  the  public  interest, 
and  best  calculated  to  subserve  the  purposes  of  justice, 
to  allow  counsel  full  freedom  of  speech  in  conducting  the 
causes  and  advocating  and  sustaining  the  rights  of  their 
constituents;  and  this  freedom  of  discussion  ought  not 
to  be  impaired  by  numerous  and  refined  distinctions.'^ 

29  Jud.  Act,  ch.   2,   §138;    Comp.  31  Hoar  v.  Wood,  3  Mete.  (Mass.) 
Laws  1915,  §12207.  193;   Dikeman  v.  Arnold,  83  Mich. 

30  Hoar  v.  Wood,  3  Mete.  (Mass.)  218;   and,  upon  the  general  subject, 
193.  see  Seligman  v.  Ten  Eyck's  Estate, 


§  11  Attorneys  169 

Indeed,  the  benefit  of  the  constitutional  right  to  counsel 
depends  very  greatly  on  the  freedom  with  which  counsel 
are  allowed  to  act  and  to  comment  on  the  facts  appear- 
ing in  the  case  and  the  inferences  deducible  from  them.''* 

§  9.  Waiver  of  privileges. 

Of  the  rights  and  privileges  attaching  to  the  office  of 
attorney  and  counselor,  of  which  mention  has  just  been 
made,  it  remains  to  be  said  that  any  of  them  may  be 
waived  by  the  person  entitled  to  them. 

§  10.  Disqualification  to  become  bail. 

As  an  attorney  and  counselor  is  entitled  to  certain 
privileges  and  exemptions  by  virtue  of  his  office,  so,  be- 
cause of  it,  he  is  likewise  subject  to  certain  disqualifica- 
tions. It  is  thus  enacted  that  no  practicing  attorney  or 
counselor  shall  become  security  or  bail  for  the  appear- 
ance of  any  person  charged  with  crime,  in  any  criminal 
action.  Any  such  security  or  bail  for  appearance,  taken 
by  a  judge,  circuit  court  commissioner,  justice  of  the 
peace  or  other  officer  authorized  by  law  to  take  the  same, 
is  declared  by  the  statute  to  be  void.''  But  it  is  to  be 
observed  that,  by  the  terms  of  the  statute,  the  disquali- 
fication is  limited  to  practicing  attorneys  and  to  appear- 
ance bail  in  criminal  cases. 

§  11.  Prohibition  against  purchase  of  choses  in  action  for 
certain  purposes. 
It  is  enacted  that  no  attorney  or  counselor  shall  direct- 
ly or  indirectly  buy,  or  be  in  any  manner  interested  in 
buying,   any  bond,  promissory  note,  bill  of  exchange, 

GO  Mich.  269;   Henry  C.  Hart  Mfg.  32  Cooley,  Const.  Lim.  443. 

Co.  V.  Mann's  Boudoir  Car  Co.,  65  38  Jud.    Act,    ch.    1,    §75;    Comp. 

Mich.  564;  Cross  v.  Lake  Shore,  etc.,      Laws  1915,   §  12080. 

Ey.  Co.,  69  Mieh.  36.3;    Gavigan  v. 

Scott,    51    Mich.    373;    Anderson    v. 

Russell,  34  Mieh.  110. 


ij«J  Attorneys  §  11 

book  debt  or  other  thing  in  action,  with  the  intent  and 
for  the  purpose  of  bringing  any  suit  thereon.^*  Every 
violation  of  this  inhibition  is  a  misdemeanor,  punishable 
by  fine  and  imprisonment,  and  necessitates  the  removal 
of  the  attorney  convicted  thereof  from  office  in  the  sev- 
eral courts  in  which  he  is  authorized  to  practice.^^  But 
this  does  not  prevent  his  receiving  in  payment  any  bond, 
promissory  note,  bill  of  exchange,  book  debt  or  any  thing 
in  action  for  any  estate,  real  or  personal,  or  for  services 
actually  rendered  or  for  a  debt  antecedently  contracted, 
nor  does  it  prevent  his  buying  or  receiving  any  bill  of 
exchange,  draft  or  other  thing  in  action  for  the  purpose 
of  remittance  and  without  intent  to  violate  the  statute  in 
any  of  these  respects.^®  Nor  is  he  prevented  by  any  law 
of  this  state  from  buying  a  chattel  of  one  person  and 
then  suing  another  in  replevin  to  obtain  the  possession 
of  it.^''^  Nor  is  he  prevented  from  taking  an  assignment 
to  himself  of  mechanics'  liens  for  the  purpose  of  collec- 
tion and  to  avoid  expense  and  a  multiplicity  of  suits.'' 

34  Jud.    Act,    ch.    1,    §  67 ;    Comp.  plaintiff  must  be  nonsuited  if  they 

Laws  1915,  §  12072.  refuse  to  attend  or  to  answer  or  if 

In  addition  the  statutes  provide  as  it  appears  on  the  examination  that 

follows:  (1)  In  an  action  on  any  de-  the  cause  of  action  has  been  bought 

mand  bought,  sold  or  received  in  vio-  or  procured  contrary  to  the  statutory 

lation    of    said    statutes,    defendant  provisions.     (4)  No  evidence  derived 

may  give  notice  with  his  plea,  in  ad-  from   the   examination   of  any   such 

dition   to    any   other   matter   of   de-  attorney,  solicitor  or  counselor,  shall 

fense,  that  on  the  trial  of  the  cause,  be  admitted  in  proof  on  any  criminal 

he  will  insist  and  prove  that  the  de-  prosecution   against  him,  for  violat- 

mand  has  been  bought  and  sold,  or  ing  any  of  the  foregoing  provisions, 

received  for  prosecution,  contrary  to  Jud.    Act,    ch.    1,    §§  70-73;     Comp. 

law,  without  setting  forth  any  par-  Laws  1915,   §§  12075-12078. 

ticulars.      (2)    On  the  trial,  defend-  36  Jud.    Act,    ch.    1,    §68;    Comp. 

ant   may   require,   if   he    gives    such  Laws  1915,  §  12073. 

notice,  that  plaintiff,  and  his  attor-  36  Jud.    Act,    ch.    1,    §69;    Comp. 

ney  and  counsel,  and  any  other  per-  Laws  1915,  §  12074. 

son  who  may  be  interested  in  the  re-  37  Town  v.  Tabor,  34  Mich.  262. 

covery  in  such  cause,  shall  be  exam-  38  Smedley   v.   Dregge,   101   Mich. 

ined  on  oath  touching  the  matters  set  200.     See  also  Kandall  v.  Baire,  66 

forth  in  such  notice.      (3)    Defend-  Mich.  312. 
ant  may  subpoena  such  persons,  and 


§  12  Attorneys  171 

The  statute  does  not  prohibit  transfers  to  attorneys  for 
convenience  of  suit  or  by  way  of  security.'® 

The  restriction  embodied  in  the  Michigan  statute  upon 
the  purchase  of  a  chose  in  action  by  an  attorney  for  the 
purpose  of  bringing  a  suit  upon  it  is  only  a  particular 
instance  of  the  old  common  law  crime  of  maintenance. 

§  12.  Maintenance  in  general. 

Maintenance  is  said  to  consist  in  the  unlawful  taking 
in  hand,  or  upholding,  of  quarrels  or  sides,  to  the  disturb- 
ance or  hindrance  of  common  right.  It  is  of  two  kinds, 
namely,  ruralis,  or  in  the  country,  and  curialis,  or  in  the 
courts.  Maintenance  ruralis  is  termed  **  champerty, " 
and  is  committed  where  one  upholds  a  controversy  under 
a  contract  to  have  a  part  of  the  property  or  subject  in 
dispute.  Maintenance  curialis  is  usually  alone  termed 
''maintenance,"  and  is  committed  where  one  officiously, 
and  'without  just  cause,  intermeddles  in  and  promotes^ 
the  prosecution  or  defense  of  a  suit  in  which  he  has  no 
interest,  by  assisting  either  party  with  money  or  other- 
wise.^® A  man  might,  however,  maintain  the  suit  of  his 
near  kinsman,  servant  or  poor  neighbor  out  of  charity 
and  compassion  with  impunity.*^  Otherwise  the  punish- 
ment by  common  law  is  fine  and  imprisonment.*^  Cham- 
perty has  also  been  defined  as  a  bargain  with  a  plaintiff 
or  defendant  to  divide  the  land  or  other  matter  sued  for 
between  them,  if  they  prevail  at  law;  whereupon  the 
champertor  is  to  carry  on  the  party 's  suit  at  his  own  ex- 
pense. In  a  more  modern  sense  of  the  word,  it  signifies 
the  purchasing  of  a  suit  or  right  of  suing,  and  it  was  a 
practice  so  abhored  by  the  law  that  it  was  one  of  the 
main  reasons  why  a  chose  in  action,  or  thing  of  which 
one  hath  the  right  but  not  the  possession,  was  not  as- 

89Tidey   v.    Kent    Circuit    Judge,  41  4  Cooley's  Bl,  Comm.  135. 

179  Mich.  580,  583.  42  4  Cooley's  Bl.  Coram.  135. 

40  3  Greenl.  Ev.  sec.  180. 


172  Attokxeys  §  12 

fiignable  at  common  law,  because,  as  it  was  said,  no  man 
should  purchase  any  pretense  to  sue  in  another's  right.*^ 
The  common  law  relative  to  this  species  of  crime  is  be- 
lieved to  be  in  force,  except  where  it  has  been  modified 
by  statutory  provision,**  as  in  Michigan  where  all  ex- 
isting laws,  rules  and  provisions  restricting  the  right  of 
a  party  to  agree  with  an  attorney  for  his  compensation 
are  repealed  and  the  measure  of  such  compensation  is 
left  to  the  agreement,  express  or  implied,  of  the  parties; 
but  any  agreement  by  which  an  attorney  or  counselor 
is  to  receive  any  percentage  or  portion  of  the  recovery 
in  any  cause  in  consideration  of  his  services  therein,  or 
in  consideration  of  his  having  advanced  or  paid  all  or 
any  portion  of  the  expenses  of  the  cause,  is  wholly  void 
if  his  employment  has  been  induced  by  his  solicitation 
or  that  of  any  one  acting  in  his  behalf  or  at  his  request, 
without  such  services  having  been  first  solicited  by  the 
party.*^ 

§  13.  Permitting  use  of  name. 

An  attorney  who  knowingly  permits  any  person  other 
than  his  general  law  partner  or  a  clerk  in  his  office  to 
sue  out  any  process  or  to  prosecute  or  defend  any  action 
in  his  name  is  liable  to  the  party  against  whom  the 

43  4  Cooley  's  Bl.  Comm.  135.  and   no   longer  exists  in   this  state. 

44  3  Greenl.  Ev.  sec.  180.  Wildey    v.    Crane,    63    Mich.    720; 
A  contract  by  which  a  wife  agreed      Foley  v.  Grand  Eapids,  etc.,  E.  Co., 

to  give  an  attorney  a  third  of   the  157    Mich.    67;    Lehman   v.   Detroit, 

results   of   a   suit   against  her  hus-  etc.,  E.  Co.,  180  Mich.  362;   Beagle 

band  is  void  as  against  public  pol-  v.  Pere  Marquette  R.  Co.,  184  Mich, 

icy.      Young    v.    Young,    196    Mich.  17,  28. 

316.  As  to  the  lien  of  an  attorney  un- 

45  Jud.    Act,    ch.    1,    §74;    Comp.  der    an    agreement    for    contingent 
Laws  1915,   §  12079.  compensation  and  notice  to  the  ad- 

If    the    common-law    doctrine    of  verse  party,  see  Grand  Eapids,  etc., 

champerty  was  in  force  in  this  state  E.   Co.  v.  Cheboygan  Circuit  Judge, 

previous  to  the  passage  of  this  stat-  161  Mich.  181. 
ute,  it  was  repealed  by  its  passage 


§  16  Attorneys  173 

process  has  been  sued  out  or  the  action  prosecuted  or 
defended  in  the  sum  of  fifty  dollars  damages.*® 

§  14.  Administering  oaths  in  their  own  cases. 

It  is  made  unlawful  by  statutory  enactment  for  no- 
taries public  who  are  attorneys  and  counselors  to  ad- 
minister oaths  in  causes  in  which  they  are  professionally 
engaged.*'' 

§  15.  Miscellaneous  statutory  liabilities. 

These  include  the  following:  **  Any  attorney,  solicitor 
or  counselor,  who  shall  be  guilty  of  any  deceit  or  collu- 
sion, or  shall  consent  to  any  deceit  or  collusion,  with  in- 
tent to  deceive  the  court  or  any  party,  shall  be  deemed 
guilty  of  a  misdemeanor,  and  on  conviction  shall  be  pun- 
ished by  fine  not  exceeding  one  thousand  dollars,  or  im- 
prisonment in  the  county  jail  not  exceeding  six  months, 
or  both,  in  the  discretion  of  the  court,  and  shall  also  be 
liable  to  the  party  injured  by  such  deceit  or  collusion,  in 
treble  the  damages  sustained,  to  be  recovered  in  a  civil 
action.  If  any  attorney,  solicitor  or  counselor,  shall  will- 
fully delay  his  client's  suit,  with  a  view  to  his  own  gain, 
or  shall  willfully  receive  any  money  or  allowance,  for, 
or  on  account  of  any  money  which  he  has  not  laid  out 
or  become  accountable  for,  he  shall  be  liable  to  the  party 
injured  in  treble  damages. 

§16.  Malpractice. 

The  attorney  is  responsible  to  his  client  for  the  ex- 
ercise of  reasonable  skill,  fidelity  and  care  in  the  dis- 
charge of  his  professional  duties,  and  the  law  holds  him 
strictly  responsible  to  his  client  for  any  loss  or  detri- 

46Jud.  Act,  ch.  1,  §66;  Comp.  •  48  Jud.  Act,  ch.  1,  §§  64-65;  Oomp. 
Laws  1915,  §  12071.  Laws  1915,  §§  12069,  12070. 

47  Jud.    Act,    ch.    1,    §77;    Comp. 
Laws  1915,  §  12082. 


174  Attorneys  §  16 

ment  arising  from  the  want  of  these  qualifications;  for 
the  rule  is  that  ''every  person  who  enters  a  learned  pro- 
fession, undertakes  to  bring  to  the  exercise  of  it,  a  rea- 
sonable degree  of  care  and  skill. ' '  *®  However,  he  is  not 
an  insurer  of  the  result  in  a  case  in  which  he  is  employed, 
nor  does  he  undertake  to  exert  the  most  consummate 
skill,  or  tireless  diligence,  in  the  business  of  his  client, 
but  he  does  profess  and  undertake  that  he  possesses  the 
knowledge  and  skill  common  to  members  of  his  profes- 
sion, and  that  he  will  exercise  in  his  client's  business, 
an  ordinary  and  reasonable  degree  of  attention,  prudence, 
and  skill.60 

Form  of  Count  in  Case  Against  an  Attorney  for  Negligence 

The  plaintiff  says: 

1.  That  before  and  at  the  time  of  committing  the  grievances  hereinafter 
next  mentioned,  the  said  plaintiff,  at  the  request  of  the  said  defendant,  had 
retained  and  employed  the  said  defendant,  as  and  being  an  attorney  of  the 

circuit  court  for  the  county  of ,  to  prosecute  and  conduct  a  certain 

action  of ,  in  the  same  court,  for  and  at  the  suit  of  the  said  plaintiff 

against  one  E.  F.,  as  defendant,  for  (brief  description  of  the  cause  of 
action),  for  reasonable  fees  and  reward  to  the  said  defendant.  2.  That  the 
said  defendant  then  and  there  accepted  and  entered  upon  such  retainer  and 
employment.  3.  That  thereupon  it  became  and  was  the  duty  of  the  said 
defendant  to  prosecute  and  conduct  the  said  action  in  a  proper,  skilful  and 
diligent  manner.  4.  That  the  said  defendant,  did  not,  nor  would,  prosecute 
or  conduct  the  said  action  in  a  proper,  skilful  and  diligent  manner,  but,  on 
the  contrary  thereof,  prosecuted  and  conducted  the  said  action  in  an  im- 
proper, unskilful  and  negligent  manner  in  (specify  wherein  the  negligence 
consists) .  5.  That,  by  and  through  the  said  neglect  and  default  of  the  said 
defendant  in  that  behalf,  the  said  plaintiff  was  compelled  to  suffer  himself 
to  be  nonsuited  in  the  said  action.  6.  That  thereby  the  said  plaintiff  was 
not  only  hindered  and  prevented  from  recovering  his  said  damages  from  the 
said  E.  F.  in  the  said  action,  but  has  also  been  forced  and  obliged  to  pay, 

and  has  paid,  to  the  said  E.  F.,  a  large  sum  of  money,  to  wit, dollars, 

for  his  costs  and  charges  in  and  about  his  defense  of  the  said  action.  7. 
That  the  said  plaintiff  has  also  paid  to  the  said  defendant  a  large  sum  of 

money,  to  wit, dollars,  for  his  fees  and  charges  for  the  prosecution 

and  conduct  of  the  said  action. 


49Eggleston     v.     Boardman,     37  60  See    Babbitt     v     Bumpus,     73 

Mich.  14.  Mich.  331. 


§  16  Attorneys  175 

Form  of  Count  Against  Attorney  for  Negligently  Conducting  Plaintiff's 

Action 

The  plaintiff  says: 

1.  That  before  and  at  the  time  of  the  making  of  the  promise  and  under- 
taking next  hereinafter  mentioned,  the  said  defendant  was  an  attorney  of 

the  circuit  court  for  the   county  of   ,  to  wit,  at   2.  That, 

heretofore,  to  wit,  on    ,  at    ,  in  consideration  that  the  said 

plaintiff,  at  the  request  of  the  said  defendant,  retained  the  said  defendant, 
as  and  being  such  attorney  as  aforesaid,  to  conduct,  for  certain  reasonable 
fees  and  reward  to  the  said  defendant,  an  action  in  said  last-named  court 
at  the  suit  of  the  said  plaintiff  and  against  one  E.  F.,  as  defendant,  for  the 

recovery  of  a  large  sum  of  money  to  wit,   dollars,  which  the  said 

plaintiff  claimed  to  be  due  to  him  from  the  said  E.  F.  3.  That  the  said 
defendant  accepted  such  retainer  and  undertook  and  promised  the  said  plain- 
tiff that  he  would  conduct  the  said  action  against  the  said  E.  F.  with 
due  and  proper  care,  skill  and  diligence.  4.  That  the  said  defendant 
did  not  conduct  the  said  action  with  due  and  proper  care,  skill  and  dili- 
gence, but  carelessly,  unskilfully  and  negligently  conducted  the  same. 
5.  That,  by  and  through  said  carelessness,  unskUfulness  and  negligence 
in  that  behalf,  the  said  plaintiff  was  obliged  to  suffer  himself  to  be  non- 
suited in  said  action  and  was  Obliged  to  pay  the  costs  and  expenses  in- 
curred by  the  said  E.  F.  in  and  about  his  defense  to  said  action  and  hai 
been  delayed  in  recovering  the  said  money  and  is  altogether  likely  to  lose 
the  same. 

Form  of  Count  Against  Attorney  for  Negligence  in  Conducting  Defense 

to  an  Action 

The  plaintiff  says: 

1.  That,  before  and  at  the  time  of  the  making  of  the  promise  and  under- 
taking next  hereinafter  mentioned,  the  said  defendant  was  an  attorney  of 
the  circuit  court  for  the  county  of ,  to  wit,  at 2.  That,  here- 
tofore, to  wit,  on ,  at ,  in  consideration  that  the  said  plaintiff, 

at  the  request  of  the  said  defendant,  retained  the  said  defendant,  as 
and  being  such  attorney  as  aforesaid,  to  conduct,  for  certain  reasonable 
fees  and  reward  to  the  said  defendant,  the  defense  of  the  said  plaintiff 
in  an  action  then  and  there  pending  in  said  last-named  court  at  the  suit 
of  E.  F.  against  the  said  plaintiff.  3.  That  the  said  defendant  accepted 
the  said  retainer  and  undertook  and  promised  the  said  plaintiff  that  he 
would  conduct  the  said  defense  in  the  action  so  brought  by  the  said  E.  F. 
against  the  said  plaintiff,  with  due  and  proper  care,  skill  and  diligence. 
4.  That  the  said  defendant  did  not  conduct  the  said  defense  with  due  and 
proper  care,  skill  and  diligence,  but  carelessly,  unskilfully  and  negligently 
conducted  thp  game.  5.  That,  by  and  through  said  carelessness,  unskil- 
fulness,  and  negligence  in  that  behalf,  the  said  E.  F,  recovered  in  that 
action  a  judgment  against  the  said  plaintiff  for  a  large  sum  of  money, 

to  wit, dollars,  for  the  damages  and  costs  of  the  said  E.  F.  therein, 

and  the  said  plaintiff  was  obliged  to  pay  (or,  became  liable  to  pay)  th« 
Baid  judgment. 


176  Attorneys  §  17 

§  17.  Lien. 

The  lien  on  papers  and  money  in  the  possession  of  the 
attorney  is  well  recognized  in  this  state.**^  An  attorney 
has  a  lien  on  money  or  papers  of  his  client  which  have 
come  into  his  possession,  derived  from,  or  pertaining  to, 
the  suit  in  which  his  legal  services  were  rendered,  to 
secure  payment  not  only  for  his  services  in  that  suit,  but 
also  for  all  professional  services  rendered  his  client  in 
other  suits."^  "Where  an  attorney  has  a  lien  on  a  fund 
notice  should  be  given  him  of  an  application  to  with- 
draw such  fund  from  court.*' 

An  attorney  has  a  lien  on  a  judgment  he  recovers  for 
his  client.**  Such  lien  does  not  attach  until  the  rendi- 
tion of  judgment,**  and  prior  to  that  time  the  attorney 
cannot  prevent  his  client  from  settling  and  discontinu- 
ing the  suit.*^  But  where  defendant  is  given  notice  of 
the  agreement  between  plaintiff  and  his  attorney  by 
which  the  attorney  is  to  receive  a  certain  per  cent  of  the 
recovery  for  his  services,  and  the  parties  settle  the  suit 
and  defendant  retains  in  his  hands  sufficient  to  pay  plain- 
tiff's attorney  but  does  not  so,  the  attorney  may  proceed 
to  the  trial  of  the  cause,  notwithstanding  the  settlement 
between  the  parties  and  a  stipulation  to  dismiss  the 
action.*'  By  giving  notice  of  the  contract  between  at- 
torney and  client  for  a  lien  on  the  amount  of  recovery, 
the  attorney  can  prevent  his  client  from  giving  a  valid 

61  Dowling  V.  Eggemann,  47  Mich.  56  Voigt    Brewery    Co.    v.   Wayne 

171.  Circuit     Judge,      103      Mich.      190; 

52Kobinson    v.    Hawes,    56    Mich.  Parker  v.  Blighton,  32  Mich.  266. 

135.  Agreement   between   attorney   and 

53  Dennis  v.  Kent  Circuit  Judge,  client  prohibiting  the  latter  from 
42  Mich.  249.  settling    pending    litigation    without 

54  Kinney  v.  Tabor,  62  Mich.  617.       the  consent  of  the  attorney  is  void. 
65  Voigt   Brewery    Co.    v.    Wayne      Nichols  v.  Waters,  201  Mich.  27. 

Circuit      Judge,     103      Mich.      190;  57  Carpenter    v.    Myers,    90    Mich. 

Wright    V.    Hake,    38    Mich.     525;       209. 
Tarkcr  v.  Blighton,  32  Mich.  266. 


§  18  Attorneys  177 

discharge  of  the  claim  to  the  opposing  party,  to  the  preju- 
dice of  such  attorney;  and  if  there  has  been  a  settle- 
ment without  the  consent  of  plaintiff's  attorney,  the  bet- 
ter practice  is  for  him  to  proceed  in  the  cause,  upon  the 
forming  of  a  proper  issue,  to  recover  the  amount  of  his 
fees,  after  first  having  the  stipulation  of  settlement  and 
discontinuance  set  aside  or  stricken  from  the  files."  The 
lien  will  not  attach  to  land  bid  off  in  his  own  name  by 
the  attorney  for  the  judgment  creditor  at  execution  sale, 
against  the  interests  and  protest  of  the  client,  where  the 
attorney  makes  no  payment  in  his  own  behalf." 

§  18.  Settlement  between  parties  after  judgment. 

After  judgment,  a  compromise  cannot  prejudice  the 
attorney's  right  to  enforce  the  judgment  to  the  extent 
of  his  lien.  If  the  client  settles  the  case  after  judgment, 
the  attorney  may  sue  the  client  for  costs  and  fees  in 
procuring  such  judgment.^"  Where  the  parties  settle 
after  judgment,  defendant  having  knowledge  of  an 
agreement  between  plaintiff  and  his  attorney  whereby 
the  services  of  the  latter  were  to  be  paid  from  the  pro- 
ceeds of  the  judgment,  and  then  defendant  has  the  judg- 
ment set  aside  and  the  case  dismissed,  the  attorney  may 
have  the  order  of  dismissal  set  aside  and  the  order  set- 
ting aside  the  judgment  modified  so  as  to  protect  his 
interests."  So  where  the  attorney  for  a  judgment  cred- 
itor, in  the  name  and  with  the  approval  of  the  latter, 
sued  on  a  bond  conditioned  for  the  payment  of  the 
judgment,  the  client  cannot  discontinue  the  suit  with- 
out the  consent  of  the  attomey.^^ 

B8  Grand  Rapids  &  I.  Ry.   Co.  v.  69  Taylor  v.  Young,  56  Mich.  285. 

Cheboygan  Circuit  Judge,  161  Mich.  60  Lindner  v.  Hine,  84  Mich.  511. 

181,    where    notice    held    sufficient.  61  Weeks  v.  Wayne  Circuit  Judges, 

See  also  Foley  v.  Grand  Rapids,  etc.,  73  Mich.  256. 

R.    Co.,    168    Mich.    496.      But    see  62  Heavenrich    v.    Alpena    Circuit 

Nichols  V.  Waters,  201  Mich.  27.  Judge,  111  Mich.  163. 
1  Abbott— 12 


178  Attorneys  §  19 

§  19.  Substitution  of  attorneys. 

An  attorney  who  has  once  appeared  in  a  cause  for  a 
party  as  attorney  of  record  can  be  displaced  and  an- 
other substituted  in  his  stead  only  through  regular  pro- 
ceedings for  that  purpose,  and,  until  such  proceedings 
have  been  taken,  such  attorney  not  only  may,  but  also 
must,  be  treated  by  the  other  parties  to  the  cause  as  the 
attorney  of  record  therein.®'  A  rule  or  order  of  the 
court  substituting  one  attorney  in  the  place  and  stead 
of  another  as  the  attorney  of  record  in  a  cause  is  in  all 
cases  necessary,  whether  the  substitution  be  made  with 
the  consent  of  the  attorney  displaced  or  without  it. 

§  20.  By  consent. 

If  the  attorney  of  record  does  not  resist  the  substitu- 
tion, the  usual  practice  is  for  the  attorney  proposed  to 
be  substituted  to  procure  from  the  attorney  of  record 
his  consent  in  writing  that  the  substitution  be  made. 
This  consent  should  .be  entitled  in  the  court  and  cause, 
dated  and  duly  signed  by  the  attorney  of  record.  There- 
upon the  consent  is  filed  in  the  cause,  and,  upon  the  basis 
thereof,  a  rule  may  be  filed  in  the  cause  that  the  new  at- 
torney be  substituted  in  the  place  and  stead  of  the 
former  attorney  as  attorney  of  record  for  the  party  in 
such  cause. 

A  substitution  made  ex  parte  by  one  or  all  the  at- 
torneys is  of  no  effect  as  against  the  client  where  made 
without  the  concurrence  or  consent  of  the  latter.®* 

§  21. Application  for. 

If  consent  for  displacement  be  not  obtained,  it  is 
necessary  to  make  an  application  for  an  order,  which 

63  Comfort     v.      Stockbridge,     38  order      of      substitution.        Landys- 

Mieh.  342.  kowski  v.  Lark,  108  Mich.  500. 

Service    of    notice    of   trial    (now  64  Hackley    v.    Muskegon    Circuit 

abolished)  on  the  old  attorneys  was  Court,  58  Mich.  454. 
suflBcient  where  there   had   been   no 


§  22  Attoeneys  179 

must  be  based  upon  a  proper  showing  of  facts  by  affi- 
davit or  otherwise;  and,  of  the  hearing  of  this  applica- 
tion, the  attorney  sought  to  be  displaced  must  be  given 
reasonable  notice.  Sometimes  the  method  pursued  is 
to  obtain  an  order  for  such  attorney  to  show  cause,  at 
a  time  and  place  therein  designated,  why  the  substitu- 
tion should  not  be  made.  Upon  the  hearing  of  the  ap- 
plication, if  the  court  or  judge  conclude  that  the  sub- 
stitution should  be  made,  an  order  for  that  purpose  is 
granted  either  without  terms  or  with  such  terms  as,  un- 
der the  circumstances  of  the  case,  seem  reasonable  and 
just. 

Attorneys  of  record  cannot  complain  of  an  order  of 
substitution  which  expressly  provides  for  the  preserva- 
tion of  any  lien  for  their  services  that  may  exist  in 
their  favor  upon  the  papers  in  their  hands  pertaining 
to  the  suit  and  upon  any  judgment  which  shall  be  ren- 
dered.®^ However,  substitution  should  not  be  permitted, 
at  least  where  there  is  nothing  to  warrant  the  discharge 
of  the  attorney,  without  requiring  payment  for  his  serv- 
ices, or  preserving  the  lien  of  the  attorney.®^ 

§  22.  Notice  of  order  for. 

When  an  order  for  substitution  has  been  made,  it  is 
essential  that  the  adverse  party  be  given  notice  of  it. 
Attorneys  have  no  right  to  interfere  in  the  conduct  or 
management  of  a  cause  upon  a  claim  of  substitution  or 
otherwise,  until  notice  thereof  has  been  served  upon  the 
attorney  of  record  for  the  opposite  party  in  a  proper 
manner;®'  and,  until  a  substitution  has  been  properly 
made  and  notice  thereof  given,  the  attorney  for  the 
other  party  has  a  right  to  disregard  any  steps  or  pro- 

65  Wipfler   v.   Warren,   163    Mich.  67  Kelly  v.  Simpson,  79  Mich.  392 
189;   Jones  v.  Dickerman,  95  Mich.      Comfort    v.    Stockbridge,    38    Mich. 
289.                                                                   342. 

66  Lanagan     v.      Wayne     Circuit 
Judge,  170  Mich.  435. 


-^80  Attorneys  ^'2'2 

ceedings  taken  in  the  name  of  any  other  than  the  at- 
torney of  record  in  the  case,  and,  until  notice  of  a  change 
has  been  received,  he  has  no  means  of  knowing,  and  no 
right  to  recognize,  any  other  attorney  in  the  conduct 
and  management  of  the  case.^' 

Form  of  Notice  of  Substitution  of  Attorney 

(Title  of  court  and  cause.) 
Sir: 

Please  take  notice  that  by  a  rule  this  day  entered  in  this  cause  J.  K. 
has  been  substituted  in  the  place  of  K.  L.  as  attorney  for  the  above-named 
plaintiff. 

Dated,  etc. 
K.  L.,  Attorney  for  Defendant. 

J.  K., 
Attorney  for  Plaintiff. 
Business  address :    ,  Mich. 

Form  of  Consent  for  Substitution  of  Attorney 

(Title  of  court  and  cause.) 

I  hereby  consent  that  J.  K.,  of   ,  be  substituted  in  my  place  as 

attorney  for  the  above-named  plaintiff. 
Dated,   etc. 

K  L., 
Attorney  for  Plaintiff. 

Form  of  Eule  for  Substitution  of  Attorney  by  Consent 

(Title  of  court  and  cause.) 

On  reading  and  filing  the  consent  in  writing  of  K.  L.,  attorney  for  plain- 
tiff, on  motion  of  J.  K.,  it  is  ordered  that  the  said  J.  K.  be,  and  he  hereby 
is,  substituted  in  the  place  of  the  said  K.  L.,  as  attorney  for  the  plaintiff. 
Dated,  etc. 

J.  K., 
Attorney  for  Plaintiff. 
Business  address :    ,  Mich. 

§  23.  Substitution  because  of  death,  removal,  etc., 

of  attorney. 

It  is  provided  by  statute  that,  when  an  attorney  dies, 
is  removed  or  suspended  or  ceases  to  act  as  such,  the 

63  Comfort  v.  Stockbridge,  38 
Mich.  342;  People  v.  Plymouth 
Plank-Road  Co.,  32  Mich.  248. 


Bail  181 

person  for  whom  he  was  acting  shall  be  notified  to  ap- 
point another  attorney  at  least  thirty  days  before  any 
proceeding  shall  be  had  against  such  person  in  the  mat- 
ter wherein  such  attorney  was  acting  for  him ;  ^*  but 
this  statute  does  not  apply  to  a  case  where  a  practicing 
attorney  for  any  reason  declines  to  go  on  with  a  particu- 
lar case  while  still  continuing  in  practice.  The  plain 
intent  of  the  statute  is  to  provide  for  cases  in  which  an 
attorney,  by  reason  of  death,  disability  or  other  cause, 
has  ceased  to  practice  in  the  court.  His  refusal  to  pro- 
ceed in  a  particular  case  does  not  disconnect  him  with 
the  case."''" 

AUDITORS 

See  References. 

AWARD 

See  -Arbitbation  and  Awaed. 

BAIL 

S    1.  Kinds  of. 

§    2.  Discharge    on   bail   bond. 

§    3.  Liability  of  appearance  bail. 

S   4.  Special  bail. 

§    5. Exceptions  to  bail. 

§    6.  Justification  of  bail. 

§    7.  Remedies  of  plaintiff  when  special  bail  not  put  in. 

§    8.  Action  against  appearance  bail. 

§    9.  Ruling  sheriff  to  put  in  and  perfect  special  bail. 

S  10.  Action  on  bail  bond  hj  sheriff. 

§  11.  Surrender  or  re-taking  of  defendant  in  exoneration  of  bail. 

§  12.  Time  when  surrender  may  be  made. 

§  13.  Right  of  bail  to  sheriff  to  surrender,  and  of  sheriff  to  re-take, 

defendant  in  exoneration. 
S  14.  Action  on  recognizance  of  special  bail. 
§  15.  Jail  liberties. 

Cross-Referenees:    Habeas   Corpus;   Commencement  or  Actions    (fix- 
ing bail  to  avoid  arrest);   Contempt;   Executions;  Jail  Liberties. 

69Jud.    Act,    ch.    1,    §63;    Comp.  70  People     v.     Plymouth      Plank- 

Laws  1915,  §  12068.  Road  Co.,  32  Mich.  248. 


182  Bail  §1 

§  1.  Kinds  of. 

The  bond  first  given  to  the  sheriff,  after  an  arrest  on 
a  capias  ad  respondendum,  is  a  bail  bond  while  the  one 
later  given  is  special  bail.  Originally  the  former  was 
called  bail  below  but  now  it  is  generally  termed  appear- 
ance bail  or  bail  to  the  sheriff;  while  the  latter,  formerly 
called  bail  above,  is  now  generally  called  special  bail  and 
the  undertaking  a  recognizance. 

§  2.  Discharge  on  bail  bond. 

On  being  arrested  on  a  capias  ad  respondendum,  the 
defendant  is  entitled  to  be  discharged,  upon  executing 
to  the  officer  making  the  arrest,  with  the  addition  of  his 
name  of  office,  a  bond,  in  a  penalty  equal  to  the  amount 
specified  in  the  order  for  bail,  or  in  double  the  amount 
specified  in  the  affidavit  attached  to  the  writ,  as  the  case 
may  be,  with  two  sufficient  sureties,  conditioned  that  the 
defendant  will  appear  in  the  action  by  putting  in  spe- 
cial bail  within  fifteen  days  after  the  day  of  the  service 
of  the  writ,  and  by  perfecting  such  bail  if  required,  ac- 
cording to  the  rules  and  practice  of  the  court.^  This 
obligation  is  called  the  bail  bond,  and  is  usually  pre- 
pared and  presented  by  the  officer  making  the  arrest. 
It  will  be  observed  that  the  statute  prescribes  the  form 
in  which  the  bail  bond  shall  be  executed,  and  this  form 
must  be  substantially  followed,  or  the  bond  will  be  void. 
It  is  sufficient,  however,  if  it  conform  substantially  to  the 
form  prescribed  and  do  not  vary  in  any  matter  to  the 
prejudice  of  the  rights  of  the  party  to  whom,  or  for 
whose  benefit,  it  is  given.  Upon  the  execution  and  de- 
livery of  the  bond,  the  officer  will  discharge  the  defend- 
ant; and  he  may,  if  he  pleases,  discharge  him  without 
requiring  a  bond;  but  if  he  do  so,  it  is  at  his  own  peril, 

1  Jud.    Act,    ch.    13,    §15;    Comp.  Bail  bond  may  run  to  under  sher- 

Law3  1915,  §  12418.     See  also  C!OM-      iff  where  he  makes  the  arrest.    Wil- 
MENCEMENT  OF  ACTIONS.  COX  V,  Ismon,  34  Mlch.  268. 


§  3  Bail  183 

and  he  will  be  liable  in  an  action  for  an  escape  in  snch 
case,  unless  he  have  the  defendant  in  actual  custody  at 
the  return  of  the  writ,  or  put  in  and  perfect  special  bail 
for  him. 

The  officer  taking  such  bail  should  give  to  the  sureties 
a  bail  piece,  the  substance  of  which  is  prescribed  by  the 
statute.^  But  the  sureties  may  waive  the  right  to  bail 
piece,  and  they  do  waive  it,  when  they  do  not  call  for 
them.  If  they  deliver  the  bond  without  calling  for  them, 
the  plaintiff  is  not  concerned  with  the  omission  and  is 
not  prejudiced  by  it.^ 

§  3.  Liability  of  appearance  bail. 

Appearance  bail  are  responsible  to  the  same  extent 
that  special  bail  would  have  been  had  any  been  entered,* 
until  special  bail  is  entered  or  they  are  otherwise  re- 
leased. 

Form  of  Appearance  Bail  Bond 

Know  all  men  by  these  presents,  that  we,  C.  D,,  as  principal,  and  E.  F. 
and  G.  H.,  as  sureties,  are  held  and  firmly  bound  unto  S.  T.,  sheriff  of 

the   county  of   ,  in  the  sum  of    dollars,  lawful  money,  to 

be  paid  to  the  said  sheriff,  or  his  certain  attorney,  executors,  adminis- 
trators, or  assigns,  for  which  payment  well  and  truly  to  be  made  we  bind 
ourselves,  our,  and  each  of  our,  heirs,  executors  and  administrators, 
jointly  and  severally,  firmly  by  these  presents. 

Sealed  with  our  seals,  and  dated  the day  of ,  in  the  year 

one  thousand  nine  hundred 

Whereas,  A.   B.  has  sued  and  prosecuted  out  of  the  circuit  court  for 

the  county  of    a  certain  writ  of  capias  ad  respondendum  against 

the  above-bounden  C.  D.,  by  virtue  of  which  said  writ  the  above-bounden 

C.  D.  was  on  the   day  of    ,  A.  D ,  arrested  by  the 

above-named  sheriff: 

Now,  therefore,  the  condition  of  this  obligation  is  such  that,  if  the 
albove-bounden  C.  D.  shall  appear  in  the  action  commenced  by  the  said 

2  Jud.  Act,  ch.   13,    §    16;    Comp.  tween   declaration   and  affidavit  for 

Laws  1915,  §  12419.  capias  such  as  to  release  sureties  on 

8  Wilcox  V.  Ismon,  34  Mich.  268.  bail    bond,    see    Pricbisch    v.    Otten- 

4  Fisher  v.  Drewa,  63  Mich.  655.  wess,  176  Mich.  476. 
What     constitutes     variance     be- 


184  Bail  §  3 

writ  by  putting  in  special  bail  within  fifteen  days  after  the  service  of 
said  writ  upon  him,  and  by  perfecting  suph  bail,  if  required,  according 
to  the  rules  and  practice  of  the  said  court,  then  this  obligation  is  to  be 
void;  otherwise  to  remain  in  full  force  and  effect. 

C.  D.  [L.  S.l 
E.  F.  [L.  S.] 
G.  H.   [L.  S.] 
(Add  justification.) 

Form  of  Bail  Piece  to  Be  Delivered  by  Bail  to  Sheriff 
County  of   ,  »s. 

On  this day  of  ,  one  thousand  nine  hundred ,  C.  D. 

is  bailed  by  E.  F.  and  G.  H.,  of  the  county  of   ,  upon  a  capias  ad 

respondendum,  returnable  in  the  circuit  court  for  said  county  of    , 

on  the day  of ,  A.  D ,  at  the  suit  of  A.  B.  in  a  plea 

of  trespass  on  the  case. 

S.  T., 
Sheriff. 

§  4.  Special  bail. 

Under  the  statutes,  special  bail,  while  usually  put  in 
by  defendant  or  his  attorney,  may  be  put  in  by  the  sheriff 
for  his  own  indemnity  or  by  the  appearance  bail  for  their 
indemnity.  In  the  first  instance,  it  must  be  put  in  with- 
in fifteen  days  after  the  service  of  the  capias;  but  where 
put  in  by  the  sheriff,  it  may  be  filed  at  any  time  before 
judgment  is  rendered  against  him,  on  payment  of  the 
costs  of  the  proceedings  against  him.*  If  the  time  ex- 
pires on  Sunday,  the  bail  may  be  filed  on  the  following 
Monday.^ 

The  recognizance,  the  form  of  which  is  expressly  fixed 
by  statute,''  may  be  taken  before  any  justice  of  the  su- 
preme court,  any  circuit  judge,  circuit  court  commis- 
sioner, or  clerk  of  any  court  of  record,  and  it  must  be 
filed  in  the  office  of  the  clerk  of  the  court  in  which  the 

B  Jud.    Act,    eh.    25,    §14;    Comp.  6  Clink  v.  Muskegon  Circuit  Judge, 

Laws  1915,  §  12992.  58  Mich.  242. 

Right  to  put  in  special  bail  after  7  Form   is  set   forth   in  Jud.   Act, 

suit    on    appearance    bail    has   been  ch.     25,     §2;     Comp.     Laws     1915, 

commenced,  see  Pease  v.  Pendell,  57  §  12980. 
Mich.  315. 


§  4  Bail  185 

action  is  pending.'  A  bail  piece  must  be  delivered  to  the 
special  bail.® 

Notice  of  putting  in  special  bail,  while  not  expressly 
required  by  statute,  should  be  served  on  plaintiff's  at- 
torney.^" 

Form  of  Recognizance 

The  Circuit  Court  for  the  County  of  

A.  B.  ] 

vs.      \  County  of  ,  bs. 

C.  D.  J 

Be  it  remembered,  that  on  this   day  of   ,  in  the  year  one 

thousand  nine  hundred ,  E.  F.  and  G.  H.,  of  the  County  of  , 

personally  appeared  before  J.  K.  (describing  the  officer,  whether  justice 
of  the  supreme  court,  circuit  judge,  circuit  court  commissioner,  or  clerk 
of  a  court  of  record),  and  severally  acknowledged  themselves  to  owe 
A,  B.,  the  above-named  plaintiff,  the  sum  of  (the  sum  for  which  the  bail 
is  required)  dollars  each,  to  be  levied  upon  their  several  goods  and  chat- 
tels, lands  and  tenements;  upon  condition  that,  if  C.  D.,  the  defendant, 
shall  be  condemned  in  this  action  at  the  suit  of  A.  B.,  the  plaintiff,  he, 
the   said   C.   D.,   shall   pay  the  costs   and  condemnation   of   the   court,   or 

O-ender  himself  into  the  custody  of  the  sheriff  of  the  County  of    

for  the  same,  or,  if  he  fail  so  to  do,  that  the  said  E.  F.  and  G.  H.  will 
pay  the  costs  and  condemnation  for  him. 

E.  F.  [L.  S.] 
G.  H.  [L.  S.] 

Taken  and  acknowledged  the   day  and  year  above  written,  before  me. 

J.  K., 
(Add  justification.)  Clerk,  etc. 

Form  of  Bail  Piece  to  Be  Delivered  to  Special  Bail 

The  Circuit  Court  for  the  County  of   

County  of  ,  ss. 

On  this   day  of   ,  in  the  year  one  thousand  nine  hundred 

,   C.    D.   is    delivered    to    hail,    on    a    eepi   corpus,    unto   E,    F.    and 

8  .Tud.    Act,    eh.    25,    §1;     Oomj).  sufficiency  of  the  surties  therein  runs 

Laws  1915,  §  12979.  from  the  time  of  such  notice,  and  if 

Eecognizanee  acknowledged  be-  such  notice  is  not  given,  the  plain- 
fore  a  notary  is  void.  Clink  v.  Mna-  tiff  may  proceed  as  if  special  bail 
kegon  Circuit  Judge,  58  Mich.  242.  had    not    been    put   in.      The    notice 

9Jud.    Act,    ch.    25,    §.3;     Conip.  sliould  be  entitled  in  the  cause,  and 

Laws  1915,  §12981.  set  forth  the  names  of  the  bail  and 

10  Notice  of  putting  in  special  bail  their  places  of  business,  so  as  to  af- 

should  be  served  on  plaintiff's  attor-  ford  the  plaintiff  an  opportunity  to 

ney,  since  the  time  to  except  to  the  inquire  into  their  sufficiency. 


186  Bail  §  4 


G.  H.,  of  the  county  of  ,  at  the  suit  of  A.  B.,  in  a  plea  of 

(as  the  case  may  be). 

J.  K., 

Clerk    (or,    Circuit   Judge,   etc.). 
Form  of  Notice  of  Special  Ball 

(Title  of  court  and  cause.) 

Sir: 

Please    to    take   notice    that   E.    F.,    of    the   village    of    ,   in   the 

county  of   ,  and  G.  H.,  of  the  city  of ,  have  become  special 

bail  for  the  defendant  in  this  cause,  and  that  their  recognizance  an  such 
ibaU,  in  a  penalty  of   ......    dollars,  was  duly  filed  in  the  office  of  th« 

clerk  of  this  court  on  the   day  of ,  19. .. 

Dated,  etc. 

Yours,  etc., 

J.  N^ 
Attorney  for  Defendant. 
T.  J.  K.,  Esq.,  Plaintiff's  Attorney. 

§  5.  Exceptions  to  bail. 

When  special  bail  has  been  put  in,  notice  thereof  should 
be  given  to  plaintiff,  who  has  twenty  days  after  such  no- 
tice to  take  exceptions  to  the  special  bail  by  making  an 
indorsement  to  that  effect  upon  the  recognizance  on  file. 
If  he  takes  exceptions,  the  plaintiff  should  give  the  de- 
fendant notice  thereof,  for  the  defendant  has  ten  days 
after  such  notice  to  perfect  his  special  bail.^^  If  no  notice 
of  retainer  of  an  attorney  to  defend  has  been  given,  the 
notice  of  exception  to  bail  should  be  delivered  to  the 
sheriff  or  one  of  his  deputies.^'' 

Form  of  Exceptions 

The  plaintiff  hereby  takes  exceptions  to  the  within  special  bail. 
Dated,  etc. 

J.  K., 

Plaintiff's  Attorney. 

llJud.    Act,    ch.    25,    §4;    Comp.  12  Cir.  a.  Rule  12,  §2. 

Laws  1915,   §12982. 


§  6  Bail  187 

Form  of  Notice  of  Exceptions  to  Special  Ball 

(Title  of  court  and  cause.) 
Sir: 

Please   take   notice   that  the  plaintiff  has  duly   excepted  to  the  reeog- 
nirance  of  special  bail  now  on  file  herein. 
Dated,   etc. 

Yours,  etc., 

J.  K., 
Attorney  for  Plaintiff, 

§  6.  Justification  of  bail. 

Special  bail  may  justify  by  affidavit  before  any  officer 
authorized  to  take  recognizance  of  special  bail;  and  such 
affidavit  must  set  forth  the  township,  or  city,  and  county 
in  this  state  in  which  the  bail  reside,  and  that  they  are 
severally  worth  the  sum  in  which  the  defendant  is  held 
to  bail,  after  all  their  debts  are  paid.'^' 

The  perfection  of  special  bail  is  not  accomplished  mere- 
ly by  an  ex  parte  justification  by  the  sureties  by  an  affi- 
davit attached  to  the  bond,  but  involves  notice  to  the 
plaintiff,  an  opportunity  for  him  to  be  heard  and  an  al- 
lowance of  the  sufficiency  of  the  sureties." 

Form  of  Notice  of  Perfecting  Special  Bail 

(Title   of  court  and  cause.) 
Sir: 

Please  take   notice  that   the  special  bail  of  the   defendant  herein   will 

be  perfected  before  J.  W.,  clerk  of  said  court,  at  his  office  in  the 

of    ,  in  said  county,  on  the    day  of    ,  A.  D , 

at 0  'clock  in  the   noon. 

Dated,  etc. 

Yours,  etc., 

K.  L., 
To  J.  K.,  Attorney  for  Defendant. 

Attorney  for  Plaintiff. 

Form  of  Justification  of  Special  Bail 

(Title  of  court  and  cause.) 

County  of    ,  ss. 

E.  F.,  of  the   of    ,  in  the  County  of   ,  in  the  State 

of  Michigan,  and  G.  H.,  of  the of ,  in  the  County  of , 

13Jud.    Act,    ch.    25,    §5;    Comp.  14  Ludwiek  v.  Kent  Circuit  Judge, 

Laws  1915,  §  12983.  138  Mich.  106. 


188  Bail  §  6 

in   the   State   of   Michigan,   being  duly  sworn,   each   for   himself   deposes 
and  says  that  he  resides  in  the  place  hereinbefore  stated  and  he  is  worth 

the  sum  of   dollars    (the  sum  in  which  the  defendant  is  held  to 

bail)   after  all  hi»  debts  are  paid. 

E.  F. 
G.  H. 
Subscribed,  etc. 

§  7.  Remedies  of  plaintiff  when  special  bail  not  put  in. 

If  special  bail  be  not  put  in  and  perfected  within  the 
time  limited  by  law,  according  to  the  rules  and  practice 
of  the  court,  and  the  plaintiff  be  satisfied  with  the  bail 
taken  by  the  officer  serving  the  writ,  he  may  take  an  as- 
signment of  the  bail  bond  from  the  officer  to  whom  the 
bond  was  given  and  may  sue  thereon  in  his  own  name,  or, 
instead  of  this,  he  may,  upon  filing  an  affidavit  that  spe- 
cial bail  has  not  been  put  in  and  perfected  and  that  the 
writ  has  been  returned  served,  enter  a  rule  with  the  clerk 
of  the  court,  in  vacation  or  term,  requiring  the  sheriff  or 
other  officer  making  the  arrest  to  put  in  and  perfect  spe- 
cial bail  within  twenty  days  after  service  of  notice  of  such 
rule.^*  The  plaintiff  thus  has  a  right  of  election  which  of 
two  remedies  he  will  pursue,  and,  having  elected  to  abide 
by  one  of  them,  he  is  excluded  thereby  from  having  re- 
course to  the  other.^^ 

§  8.  Action  against  appearance  bail. 

The  right  of  the  plaintiff  to  take  an  assignment  of  the 
bail  bond  taken  by  the  officer  serving  the  writ,  and  to  sue 
thereon  in  his  own  name,  begins  when  the  condition  of  the 
bond  is  broken  by  the  default  in  putting  in  and  perfecting 
recognizance  of  special  bail. 

The  assignment  of  a  bail  bond  by  the  sheriff  to  the 
plaintiff  is  not  required  to  be  under  seal,  and  need  not 
purport  to  be  an  official  act,  the  official  character  appear- 
ing in  the  bond  itself.  Any  indorsement  by  the  officer, 
purporting  to  assign  the  bond  to  the  plaintiff,  is  suffi- 

16  Jud.  Act,  ch.  25,  §§  6,  9;  Comp.  16  De     Myer     v.     McGonegal,     32 

I-aws  1915,  §§  12984,  12987.  Mich.   120. 


§  8  Bail  189 

cient.  The  officer  holds  the  bond  for  his  protection  as  an 
individual,  and  transfers  it  to  the  plaintiff  that  he  may- 
assume  the  responsibility.^''^ 

The  proceedings  in  the  suit  on  the  bail  bond  may  be  set 
aside,  if  irregular,  or  stayed  on  terms  in  order  that  a  trial 
may  be  had  in  the  original  action.^'  Where  the  plaintiff 
has  not  lost  a  trial  in  the  original  action  by  reason  of  de- 
fault in  not  filing  and  perfecting  special  bail,  the  court 
may  stay  the  proceedings  on  the  bail  bond  upon  the  put- 
ting in  and  perfecting  of  special  bail,  paying  the  costs  of 
assigning  the  bail  bond  and  of  the  proceedings  thereon, 
receiving  a  declaration  in  the  action  and  pleading  issu- 
ably  to  the  merits,  so  that  the  original  cause  may  be  tried 
at  the  same  time,  if  the  plaintiff  so  elects;  and,  if  the 
plaintiff  has  lost  a  trial  by  reason  of  such  default,  judg- 
ment will  be  entered  on  the  bail  bond  as  security."  But 
the  sureties  on  the  bail  bond  may  surrender  the  defendant 
in  exoneration  at  any  time  within  eight  days  after  suit  on 
the  bond  has  been  commenced  and  the  process  or  declara- 
tion by  which  it  was  commenced  has  been  served.^"  The 
payment  of  the  costs  which  have  accrued  is  not  an  essen- 
tial prerequisite  to  a  valid  surrender. ^^ 

Form  of  Assignment  of  Bail  Bond  by  Sheriff 

Know  all  men  by  these  presents,  that  I,  S.   T.,  sheriff  of   the  County 

of    ,   do   hereby   assigp   the  within  bail  bond   to   the   within-named 

A.  B.,  at  his  request,  to  be  sued  upon  by  him  according  to  law. 

In  testimony  whereof,  I  have  hereunto  set  my  hand  and  seal  this 

day  of   ,  A.  D 

S.  T.   [L.  S.] 
Sheriff. 

Form  of  Count  on  Appearance  Bail 
The  plaintiff  says: 

1.  That   heretofore,   to    wit,   on     ,   the    said   plaintiff   sued   out   of 

the  circuit  court  for  the  county  of  ,  against  the  laid  C.  D.,  a  writ 

17  Wilcox  V.  Ismon,  34  Mich.  268.  20  Schwarzschild  &  Sulzberger  Co. 

iSJud.    Act,   ch.    25,    §7;    Comp.  v.  Cryan,  167  Mich.  377;  McNeal  v. 

J.aw.s  1915,  §12985.  Van  Duser,  142  Mich.  .593. 

19Jud.  Act,  ch.  25,  S8;  Comp.  21  Morj^an  v.  .lonos,  117  Mich.  50. 
Laws  1915,  §12986. 


190  Bail  §  8 

of  capias  ad  respondendum,  directed  to  the  sheriff  of  said  county  and 
commanding  the  said  sheriff,  in  the  name  of  the  people  of  the  state  of 
Michigan,  to  take  the  said  C.  D.,  if  he  should  be  found  in  said  sheriff's 
bailiwick,    and    keep   him   in   his    custody   until    he    should   be    discharged 

according  to  law.    2.  That  said  writ  was  returnable  on 3.  That,  on 

said  writ    (if  such  be  the  fact),  before  its   delivery  to   said  sheriff,  an 

order   was  indorsed,   made   by    (specifying   the    officer),    directing 

the  said  C.  D.  to  be  held  to  bail  on  said  writ  in  the  sum  of  dol- 
lars.    4.  That  said  writ  afterwards,  to  wit,  on   ,  before  the  return 

day  thereof,  was  delivered  to   S.   T.,  who  then  and  there  was  sheriff  of 

the  said  county  of   ,  to  be  executed.     5.  That  afterwards,  to  wit, 

on ,  the  said  S.  T.,  as  and  being  such  sheriff  as  aforesaid,  by  virtue 

of  said  writ,  took  the  said  C.  D.,  to  wit,  at    ,  in  the  said  county 

of    ,   and  kept  him  in   his  custody,   according  to  the  command   of 

said  writ.     6.  That  thereupon  the  said  C.  D.,  to  wit,  on   ,  delivered 

to  the  said  sheriff,  with  the  addition  of  his  name  of  office,  a  bond  for 
the  appearance  of  the  said  C.  D.,  in  the  action  commenced  by  said  writ, 
within  fifteen  days  after  the  service  thereof,  according  to  the  statute 
in  such  case  made  and  provided.  7.  That  then  and  there,  to  wit,  on 
the  day  and  year  last  aforesaid,  the  said  defendants,  by  their  certain 
writing  obligatory,  sealed  with  their  respective  seals,  the  date  whereof 
is  the  day  and  year  last  aforesaid,  a  copy  of  which  is  hereto  annexed, 
acknowledged  themselves  to  be  held  and  firmly  bound  unto  the  said  S.  T., 

as  such  sheriff,  in  the  sum  of   dollars,  lawful  money,  to  be  paid 

to  the  said  sheriff,  or  his  certain  attorney,  executors,  administrators,  or 
assigns,  subject  to  a  certain  condition  thereunder  written,  whereby  it 
was  provided  that,  if  the  said  C.  D.  should  appear  in  the  action  so  com- 
menced by  the  said  writ,  as  aforesaid,  by  putting  in  special  bail  within 
fifteen  days  after  the  service  of  the  said  writ  upon  him,  and  by  perfect- 
ing such  bail,  if  required,  according  to  the  rules  and  practice  of  the  said 
court,  the  said  obligation  was  to  be  void,  otherwise  to  remain  in  full  force 
and  effect.  8.  That  the  said  C.  D.  did  not  appear  in  the  said  action 
within  the  time  above  specified,  by  putting  in  special  bail  but  has  therein 
wholly  failed  and  made  default.  9.  That,  thereby  the  said  writing  oblig- 
atory became  and  was  forfeited.  10.  That,  the  said  writing  obligatory 
being  so  forfeited,  and  the  money  therein  specified  remaining  unpaid  to 

the  said   sheriff,  he,  the   said  sheriff,   afterwards,  to   wit,   on    ,   at 

,   at  the  request   of   the  said  plaintiff,  by   an  indorsement   on   the 

said  writing  obligatory  under  his  hand,  duly  assigned  the  said  writing 
obligatory  to  the  said  plaintiff  according  to  law.  11.  That  the  said  de- 
fendants, although  requested  so  to  do,  have  not  paid  the  said  sum  of 
money,  or  any  part  thereof. 

§  9.  Ruling  sheriff  to  put  in  and  perfect  special  bail. 

Instead  of  taking  an  assignment  of  the  bail  bond  taken 
by  the  officer  making  the  arrest  of  the  defendant,  the 


§  9  Bail  191 

plaintiff  may,  as  has  been  stated,  require  such  officer  by 
rule  to  put  in  and  perfect  special  bail.  This  rule  is  filed 
with  the  clerk  of  the  court,  in  vacation  or  in  term,  with 
an  affidavit  that  special  bail  has  not  been  put  in  and  per- 
fected and  that  the  writ  of  capias  ad  respondendum  has 
been  returned  served,  and  requires  the  sheriff  or  other 
officer  who  made  the  arrest  to  put  in  and  perfect  special 
bail  within  twenty  days  after  service  of  notice  of  the 
rule.^^  And  if  such  bail  be  not  put  in  and  perfected  within 
the  time  specified  in  the  rule,  upon  filing  an  affidavit  of 
the  service  of  notice  of  the -rule,  a  further  rule  may  be 
filed  with  the  clerk,  in  vacation  or  in  term,  that  an  at- 
tachment issue  against  the  officer;  and  such  attachment 
may  be  issued  accordingly.^' 

Upon  the  sheriff  or  other  officer  being  brought  into 
court  on  an  attachment  for  not  putting  in  bail  to  the 
action,  the  court  may,  by  summary  proceedings,  ascer- 
tain the  amount  due  to  the  plaintiff  in  the  action  in  the 
same  manner  as  if  interlocutory  judgment  had  been  en- 
tered against  the  defendant,  and  may  enter  a  judgment 
against  the  sheriff  or  other  officer  for  the  amount  so  as- 
certained to  be  due,  with  the  costs  of  the  suit  and  pro- 
ceedings,^* If  the  court  determines  that  the  amount  so 
ascertained  ought  to  be  paid  by  the  sheriff  or  other  of- 
ficer, and  he  confesses  a  judgment  to  the  plaintiff  for 
such  amount,  with  the  costs  of  suit  and  the  proceedings, 
the  court  will  thereupon  stay  all  other  proceedings 
against  him  until  he  shall  have  had  a  reasonable  time  to 
obtain  judgment  on  the  bond  taken  on  the  arrest  of  the 
defendant  and  to  collect  the  amount  so  ascertained  to  be 
due  to  the  plaintiff;  ^^  but  if,  in  any  such  action,  after  a 
reasonable   time,  the  sheriff  or  other  officer  does  not 

22Jud.    Act,    ch.    25,    §9;  Comp.  24  Jud.   Act,  cli.   25,   §11;    Comp. 

Laws  1915,  §  129.87.  Laws  1915,  §  12989. 

23  Jud.   Act,   eh.   25,    §10;  Comp.  25  Jud.   Act,   ch.   25,    §12;    Comp. 

Laws  1915,  §  12988.  Laws  1915,  §  12990. 


102  Bail  §9 

satisfy  the  plaintiff  in  the  action  the  amount  due  him, 
with  costs  and  interest,  the  court  will  award  execution 
on  the  judgment  against  the  sheriff  or  other  officer,  and, 
if  the  execution  be  returned  unsatisfied  in  part  or  in 
whole,  the  same  proceedings  may  be  had  on  the  official 
bond  of  the  sheriff  or  other  officer  to  collect  the  defi- 
ciency as  in  other  cases  of  delinquency.^® 

Form  of  Affidavit  to  Compel  Sheriff  to  Put  In  and  Perfect  Special  Bail 

(Title  of  court  and  cause.) 
County  of ,  ss. 

J.  K.,  being  duly  sworn,  deposes  and  says  that  he  is  attorney  for  the 
above-named    plaintiff;    that    the    capias   ad   respondendum   in    this    cause 

was  issued  on  the    day  of   ,  A.  D ,  directed  to  the 

sheriff  of  said  county,  and  made  returnable  on  the   day  of , 

A.  D ;   that  S.  T.,  sheriff  of  said  county,  has  returned  said  writ, 

together  with   his   certificate   that   on   the    day   of    ,   A.  D. 

,  he   took   the   said   defendant;    that   more  than   fifteen   days  have 

elapsed  since  the  said  defendant  was  taken  as  aforesaid;  and  that  special 
bail  has  not  been  put  in  and  perfected  in  this  cause. 

J.  K. 

Subscribed,  etc. 

Form  of  Bule  Requiring  Sheriff  to  Put  In  and  Perfect  Special  Ball 

(Title  of  court  and  cause.) 

On  reading  and  filing  the  affidavit  of  J.  K.,  attorney  for  the  above- 
named  plaintiff,  showing  that  the  capias  ad  respondendum,  issued  in  this 
cause,  has  been  returned  by  S.  T.,  sheriff  of  said  county,  with  his  certifi- 
cate that  C.  D.,  the  above-named  defendant,  had  been  taken  thereon;  that 
more  than  fifteen  days  have  elapsed  since  the  service  of  said  writ  as  afore- 
said; and  that  special  bail  has  not  been  put  in  and  perfected  in  this  cause; 
on  motion  of  J.  K.,  attorney  for  plaintiff,  it  is  ordered  that  the  said 
S.  T.,  sheriff  as  aforesaid,  put  in  and  perfect  special  bail  in  this  cause, 
within  twenty  days  after  service  upon  him  of  notice  of  this  rule. 

Dated,  etc. 

J.  K., 
Attorney  for  Plaintiff. 

Form  of  Notice  of  Bule  for  Sheriff  to  Put  In  and  Perfect  Special  Bail 
(Title  of  court  and  cause.) 
Sir: 

You  will  please  to  take  notice  that  the  annexed  is  a  copy  of  a  rule 
entered   in   the   above-entitled   cause,   and   that,  in   accordance   therewith. 

26Jud.    Act,   eh.    2o,    ^U;    Comp. 
Laws  1915,  §  12991 


§  10  Bail  193 

you  are  required  to  put  in  and  perfect  special  bail  herein  within  twenty 
days  after  service  upon  you  hereof. 
Dated,   etc. 

Yours,   etc., 

J.   K., 
Plaintiff  's  Attorney. 
Business  address: 

,  Mieh. 

To  S.   T.,  Slieriff  of    County. 

Form  of  Affidavit  of  Service  of  Notice  of  Kule  for  Slieriff  to  Put  in  and 
Perfect  Special  Bail 

(Title  of  court  and  cause.) 
County  of  ,  ss. 

J.  K.,  attorney  for  the  above-named  plaintiff,  being  duly  sworn,  deposes 

and  says  that  on  the   day  of   ,  A.  D ,  he  served  the 

notice,  of  which  the  annexed  is  a  copy,  upon  S.  T.,  sheriff  of  said  county, 

by  delivering  the  same  to  him  personally  at  the of ,  in  laid 

county. 

J.   K. 

Subscribed,   etc. 

Form  of  Rule  for  Attachment  Against  Sheriff  for  Not  Putting  in  and 
Perfecting  Special  Bail 

(Title  of  court  and  cause.) 

It  appearing  by  the  affidavit  of  J.  K.,  attorney  for  the  plaintiff,  that 
notice  of  the  rule  heretofore  entered  in  this  cause,  requiring  S.  T.,  sheriff 
of  said  county,  to  put  in  and  perfect  special  bail  herein  within  twenty 
days  after  service  upon  said  sheriff  of  said  notice,  was  personally  served 
upon  said  sheriff  on  the  day  of  ,  A.  D ,  and  it  fur- 
ther appearing  that  special  bail  has  not  been  put  in  and  perfected  herein; 
on  motion  of  J.  K.,  attorney  for  plaintiff,  it  is  ordered  that  an  attach- 
ment issue  against  S.  T.,  sheriff,  as  aforesaid,  according  to  the  statute  in 
such   case  made   and  provided. 

Dated,  etc. 

J.  K., 
Attorney  for  Plaintiff. 

§  10.  Action  on  bail  bond  by  sheriff. 

Where  the  sheriff  or  other  officer  wlio  made  the  arrest 
has,  for  his  own  indemnity,  put  in  and  perfected  special 
bail  to  the  action,  when  such  bail  has  been  required  by 
the  xjlaintiif,  the  putting  in  of  such  bail  by  tlie  officer 
will  not  be  deemed  a  performance  of  the  condition  of  the 
bond  taken  on  the  arrest  of  the  defendant,  but  the  officer 

1  Abbott— 1;{ 


19^  Bail  |  10 

may,  notwithstanding,  })rosecute  such  bond  and  recover 
the  amount  of  all  damages  which  he  has  sustained  by 
the  neglect  of  the  defendant  to  put  in  and  perfect  special 
bail." 

§  11.  Surrender  or  re-taking  of  defendant  in  exoneration 
of  bail. 

The  special  bail  of  any  defendant  may  surrender  him, 
or  the  sheriff  may  re-take  him  into  his  custody  upon  dis- 
covering that  any  surety  on  the  special  bail  bond  is  in- 
sufficient, or  the  defendant  may  surrender  himself  in 
exoneration  of  his  bail,  before  any  judge  of  a  circuit 
court  or  a  circuit  court  commissioner.^^  Exoneration  of 
bail  has  always  been  considered  within  the  range  of 
chamber  business,  and  it  is  not  unconstitutional  to  con- 
fer upon  a  circuit  court  commissioner  the  right  to  exer- 
cise this  function.^* 

The  proceedings  to  effect  the  surrender  of  a  defendant 
in  exoneration  of  his  bail,  whether  by  his  special  bail  or 
by  himself,  are  as  follows: 

1.  There  shall  be  produced  to  the  officer  authorized  to 
accept  the  surrender  tw^o  copies  of  the  bail  piece,  upon 
one  of  which  he  shall  indorse  an  order  ^^  that  the  de- 
fendant be  committed  to  the  custody  of  the  sheriff  in 
exoneration  of  his  bail,  which  shall  be  delivered  to  the 
sheriff  and  will  authorize  him  to  commit  and  detain  the 
defendant  until  he  is  duly  discharged. 

2.  Upon  producing  to  such  officer  the  certificate  of  the 
sheriff  that  the  defendant  has  been  committed  to,  and 
remains  in,  his  custody  by  virtue  of  such  order  of  com- 

27  Jud.  Act,  oh.  25,  §  14 ;  Comp.  30  An  indorsement  on  a  piece  of 
Laws  1915,  §  12992.  jiaper  attached  to  the  bail  piece  is 

28  Jud.  Act,  eh.  25,  §§19,  20,  sufficient.  McNeal  v.  Van  Duser, 
subd.  5;  Comp.  Laws  1915,  §§  12997,  142  Mich.  593. 

12998,  subd.  5. 

29  De  Myer  v.  McGonegal,  32  Mich.  » 
120. 


§12  Bail  195 

mitment,  acknowledged  before  such  officer  by  the  sheriff 
or  proved  by  a  subscribing  witness  thereto,  an  order 
shall  be  made  by  such  officer  requiring  the  plaintiff  to 
show  cause  before  him,  at  such  time  and  place  as  he  shall 
appoint,  why  the  bail  of  the  defendant  should  not  be 
exonerated  from  their  liability. 

3.  Upon  producing  proof  of  the  due  service  of  such 
order  on  the  plaintiff  or  his  attorney,  such  officer  shall 
proceed  to  hear  the  allegations  and  proofs  of  the  parties, 
and,  if  no  good  cause  to  the  contrary  appear,  shall  in- 
dorse an  order  on  the  second  copy  of  the  bail  piece,  briefly 
reciting  the  proceedings  had  before  him  and  declaring 
that  the  bail  of  the  defendant  are  discharged  from  all 
liability  as  such  bail  in  the  suit  in  which  such  bail  piece 
was  taken. 

4.  To  such  copy  of  the  bail  piece  shall  be  attached  the 
certificate  of  the  sheriff  hereinbefore  required,  with  the 
ackttowledgment  or  proof  thereof,  the  order  to  show 
cause  and  the  proof  of  the  service  thereof,  which  papers 
shall  be  immediately  filed  in  the  office  of  the  clerk  of  the 
court,  and,  until  they  are  so  filed,  the  liability  of  the  bail 
will  continue.'^ 

A  circuit  judge  has  no  jurisdiction  of  proceedings  to 
exonerate  special  bail  in  the  absence  of  copies  of  the  bail 
piece.  The  statute  expressly  and  plainly  requires  them, 
and  copies  of  the  recognizance  do  not  constitute  a  valid 
substitute;  ^^  but  the  copies  need  not  be  certified  to  be 
such.'^ 

§  12.  Time  when  surrender  may  be  made. 

By  the  literal  terms  of  the  recognizance  of  special  bail, 
the  bail  might  be  considered  as  definitely  fixed  by  the 
return  of  the  capias  ad  satisfaciendum  not  found.  Ac- 
cordingly it  was  anciently  held  that  bail  could  not  be 

SlJud.   Act,   ch.   25,    §20;    Comp.  32  Elliott  v.  Dudley,  8  Mich.  62. 

Laws  1915,  §12998.  33  Moifjan  v.  .Tones,  117  Mich.  59. 


196  Bail  §  12 

exonerated  by  a  surrender  of  their  principal  after  such 
return.  At  a  later  time,  however,  a  practice  arose  where- 
by the  bail  were  given  eight  days  after  the  return  of 
process  against  them  to  surrender  their  principal,  but 
this  was  a  privilege  which,  although  universally  granted 
in  practice,  was  nevertheless  always  regarded  as  a  mat- 
ter of  grace  and  favor.  In  Michigan,  a  similar  practice 
obtains,  which,  although  not  expressly  provided  for,  is 
plainly  recognized  by  statute,'*  so  that  it  is  regarded 
in. this  state  to  be  a  matter  of  strict  right  for  the  special 
bail  to  exonerate  themselves  by  a  surrender  of  their 
principal  at  any  time  before  the  expiration  of  eight  days 
after  the  return  of  process  against  them,  or,  in  case  the 
suit  upon  tlip  recognizance  has  been  commenced  by 
declaration,  before  the  expiration  of  eight  days  after  the 
service  of  the  declaration  upon  them.'^ 

§  13.  Right  of  bail  to  sheriff  to  surrender,  and  of 

sheriff  to  re-take,  defendant  in  exoneration. 

When  a  bail  bond  has  been  taken  on  the  arrest  of  a 
defendant,  the  bail  therein  may  surrender  their  prin- 
cipal, or  lie  may  surrender  himself,  in  exoneration  of  his 
bail,  in  the  same  manner,  before  the  same  officers,  and 
with  the  like  effect  as  special  bail.^^  This  may  be  done 
not  only  before  suit  has  been  commenced  on  the  bond, 
but  at  any  time  within  eight  days  after  service  of  process 
in  such  a  suit.''  The  payinent  of  the  costs  which  have 
accrued  is  not  essential  to  a  valid  surrender.''  And  the 
sheriff,  upon  discovering  that  any  surety  in  such  bond 

34Jud.   Act,   ch.   25,   §18;    Comp.  37  Schwarzsehild  &  Sulzberger  Co. 

Laws  1915,   §12996.  v.  Cryan,  167  Mich.  377;  McNeal  v. 

35Begole    V.     Stimson,    ,39    Midi.       Van  Duser,  142  Mich.  593. 
288;   Umphrey  v.  Emery,  121  Mich.  38  Morgan  v.  Jones,  117  Mich.  59. 

184. 

36Jiid.   Act,   ch.   25,   §21;    Comp. 
Laws  1915,  §  12999. 


§  14  Bail  197 

is  insufficient,  may  re-take  the  defendant  into  custody, 
which  also  operates  to  exonerate  the  bail.^^ 

Form  of  Order  Exonerating  Bail  to  Be  Indorsed  on  Bail  Piece 
An  order  having  been  heretofore  made  requiring  the  within-named  plain- 
tiff to  show  cause  why  the  bail  of  the  within-named  defendant  should  not 
be  exonerated  from  their  liability,  and  proof  of  service  of  such  order  upon 
J.  K.,  attorney  for  plaintiff,  having  been  produced  after  hearing  alle- 
gations and  proofs  of  the  parties,  and  no  good  cause  to  the  contrary 
appearing,  it  is  hereby  ordered  and  declared  that  the  bail  of  the  within- 
named  defendant  be,  and  they  hereby  are,  discharged  from  all  liability 
as  such  bail. 
Dated,  etc. 

J.  S., 
Circuit  Judge   (or  Circuit  Court  Commissioner). 

Form  of  Order  to  Show  Cause  Why  Bail  Should  Not  Be  Exonerated 
(Title  of  court  and  cause.) 

On  reading  and  filing  the  certificate  of  S.  T.,  sheriff  of  said  county, 
that  C.  D.,  the  defendant,  has  been  committed  to,  and  now  remains  in, 
his  custody  by  virtue  of  an  order  of  commitment  heretofore  made  herein, 

and   said    certificate    having   been    duly   proved    by    ,    a   subscribing 

witness  .thereto    (or,   and   said  certificate   having  been   duly  acknowledged 
by  said   sheriff),  it  is  hereby  ordered  that  the   said   plaintiff  show   cause 

before  me  at on  the day  of ,  A.  D ,  at 

o  'clock  in   the    noon,  why  the   bail   of  the  said  defendant  should 

not  be  exonerated  from  their  liability. 

Dated,  etc. 

J.  S., 
Circuit  Judge   (or  Circuit  Court  Commissioner). 

Form  of  Commitment  of  Defendant  to  Be  Indorsed  Upon   Bail   Piece 
Let   the   within-named   defendant   be   committed   to   the   custody   of   the 

sheriff  of  the  County  of in  exoneration  of  his  within  bail. 

Dated,  etc. 

J.  S., 
Circuit  Judge   (or  Circuit  Court  Commissioner). 

§  14.  Action  on  recognizance  of  special  bail. 

Under  the  ancient  practice,  the  only  remedy  against 
bail  was  scire  facias,  and  the  courts  did  not  permit  a 

89Jud.  Act,  eh.  25,  §§20  (subd. 
5),  21;  Comp.  Laws  1915,  §§12998 
(subd.  5),  12999. 


198 


Bail 


U4 


common  action  on  the  recognizance,  but,  after  some  fluc- 
tuations, the  right  to  bring  debt  was  sanctioned,  and 
now,  in  iMichigan,  action  upon  the  recognizance  is  pro- 
vided for  by  statute." 

No  suit  can  be  commenced  upon  any  recognizance  of 
special  bail  until  an  execution  against  the  body  of  the 
defendant,  having  at  least  fifteen  days  between  the  teste 
and  the  return  thereof,  has  been  issued  to  the  sheritf  of 
the  county  in  which  the  defendant  was  arrested,  and  by 
him  returned  that  the  defendant  could  not  be  found 
within  his  county.*^  Where  the  sheriff's  return  was,  *'I 
hereby  certify  and  return  that  after  diligent  search  and 
inquiry  I  am  unable  to  find  the  within-named  defendant 
(naming  him)  within  my  bailiwick,  and  cannot  have  his 
body,  as  I  am  within  commanded,"  it  was  held  equivalent 
to  the  statutory  requirement  and,  therefore,  sufficient  as 
a  basis  for  action  upon  the  recognizance  of  special  bail.*^ 
But  a  return  of  the  execution  merelv  as  "unsatisfied" 


40  Begole  v.  Stimson,  39  Mich.  288. 

41  Jud.  Act,  ch.  25,  §15;  Comp. 
Laws  1915,  §  12993. 

Notice  of  judgment  against  the 
principal  is  not  a  condition  preced- 
ent to  an  action  against  special  bail. 
Vandergazelle  v.  Eodgers,  57  Mich. 
132. 

Where  the  recognizance  is  lost,  it 
is  improper  to  substitute  a  copy  in 
lieu  of  the  original,  where  the  sure- 
ties are  not  given  notice  of  the  mo- 
tion. Montgomery  v.  Henry,  10 
Mich.  19. 

The  genuineness  of  the  recogni- 
zance of  special  bail  may  be  dis- 
proved. Elliott  V.  Green,  10  Mich. 
113.  See  also  Spencer  v.  Fish,  43 
Mich.  226. 

The  judgment  in  the  original  suit 
is  admissible  in  evidence  as  fixing 
the  measure  of  damages.  Wilcox  v. 
Tsmon,  34  Mich.  2fi8. 


The  files  in  the  case  in  which  the 
recognizance  was  given  and  the  re- 
turns on  the  capias  are  admissible. 
Heymes  v.  Champlin,  52  Mich.  25. 

The  declaration  must  allege  the 
issuance  of  execution  against  the 
body  and  a  return  not  found.  Prior 
v.  Bodrie,  49  Mich.  200. 

A  recoguizance  of  special  bail  is 
not  such  a  ' '  written  instrument ' ' 
that  its  execution  need  not  be  proved 
unless  denied  by  afiidavit.  Elliott  v. 
Green,  10  Mich.  113. 

Removal  of  cause  to  another  court 
as  discharging  sureties,  see  Campan 
v.  Seeley,  30  Mich.  57. 

Discharge  of  defendant  in  bank- 
ruptcy releases  sureties.  Bryant  v. 
Kinyon,  127   Mich.   152. 

42Liehfelt  v.  Kopp,  38  Mich.  312 


Bailment  199 

does  not  show  that  the  defendant  could  not  be  found 
within  the  county,  and  consequently  is  not  sufficient  as 
such  a  basis.*^  It  is  the  duty  of  the  sheriff  to  use  all 
reasonable  endeavors  to  execute  his  writ,  notwithstand- 
ing any  directions  he  may  receive  from  the  plaintiff  or 
his  attorney.** 

If  it  appears,  upon  the  trial  of  an  action  upon  a  recog- 
nizance of  special  bail,  that  an  execution  against  the 
body  of  the  defendant  was  not  issued  as  required,  or  that 
it  was  not  issued  in  sufficient  time  to  enable  the  sheriff  to 
execute  it,  or  that  directions  were  given  by  the  plaintiff 
or  his  attorney  to  prevent  the  service  of  the  execution,  or 
that  any  other  fraudulent  or  collusive  means  were  used 
to  prevent  the  service,  the  bail  will  be  entitled  to  a  ver- 
dict in  their  favor.** 

When  the  defendant  in  a  suit  dies  after  the  return  of 
the  execution  against  his  body  and  before  the  expiration 
of  eight  days  from  the  return  of  the  process  served  on 
his  bail,  the  court  will  relieve  the  bail  on  the  same  terms 
as  if  they  had  surrendered  their  principal  at  the  time  of 
his  death.** 

§  15.  Jail  liberties. 

Persons  in  custody  of  the  sheriff  by  virtue  of  a  sur- 
render in  exoneration  of  bail  are  entitled  to  the  liberty 
of  the  jail  limits  on  executing  a  proper  bond.*' 

BAILMENT 

Cross-Beference:    Pledges. 

A  bailee  is  liable  for  negligence  in  caring  for  the  prop- 
erty which  is  tlie  subject  of  the  bailment,^  as  well  as  for 

43  Barnnm  V.  Waterbuiy,  38  Mich.  46  Jud.    Act,   ch.   25,    §18;    Comp. 
280.  Laws   1915,   §  12996. 

44  Jud.   Act,   ch.    25,    §16;    Comp.  47  Jud.   Act,   ch.    25,    §22;    Comp. 
Laws  1915,   §12994.  Laws  1915,  §13000.     See  Jail  Lib- 

45  Jud.   Act,   ch.   25,    §17;    Comp.  ekties. 

Laws  1915,  §  12995.  1  Roe   Smith   v.  Bailey,   195   Mich. 


200  Bailment 

conversion  of  it.^    In  such  a  case,  the  action  to  recover  is 
ex  delicto,  unless  the  tort  is  waived,  and  the  pleadings  are 
governed  by  the  rules  relating  to  pleading  in  general.^ 
Form  of  Count  in  Case  Against  a  Bailee  for  Negligence 

First  count. 
The  plaintiff  says: 

1.  That,  Tvhereas,  heretofore,  to  wit,  on   ,  at ,  in  considera- 
tion  that   the   said  plaintiff,   at  the  request  of  the   said   defendant,   had 

caused  to  be  delivered  to  him  certain  goods  and  chattels,  to  wit,    , 

of  him,  the  said  plaintiff,  of  great  value,  to  vnt,  of  the  value  of   

dollars,  to  be  taken  car©  of  and  safely  kept  by  the  said  defendant  for 
the  said  plaintiff,  he,  the  said  defendant,  then  and  there  undertook  and 
agreed  with  the  said  plaintiff  that  he  would  take  due  and  proper  care 
of  the  said  goods  and  chattels  for  the  said  plaintiff  and  would  deliver  the 
same  to  the  said  plaintiff  when  he,  the  said  defendant,  should  be  there- 
unto aftemards   requested.     2.  That   the   said  defendant  was  afterwards, 

to  wit,  on   ,  at   ,  requested  by  the  said  plaintiff  to  redeliver 

the  said  goods  and  chattels  to  the  said  plaintiff.  3.  That  the  said  de- 
fendant did  not  take  due  and  proper  care  of  the  said  goods  and  chattel! 
for  the  said  plaintiff,  nor  did,  when  he  was  so  requested  or  at  any  time 
before  or  afterwards,  redeliver  the  same  to  the  said  plaintiff.  4.  That, 
on  the  contrary  thereof,  the  said  defendant  so  carelessly  and  negligently 
took  so  little  and  so  bad  care  of  the  said  goods  and  chattels,  that  thereby 
the  said  goods  and  chattels  were  wholly  lost  to  the  said  plaintiff. 

Second  count. 
The  plaintiff  says: 

1.  That,  also  heretofore,  to  wit,  on   ,  at   ,  the  said  defend- 
ant,  at  his  request,   had   the  care  of  certain   other  goods  and  chattels,  to 

wit,   ,  of  him,  the  said  plaintiff,  of  great  value,  to  wit,  of  the  valu« 

of dollars.    2.  That  the  said  defendant  did  not  take  due  and  proper 

ears  of  the  said  last-mentioned  goods  and  chattels,  to  wit,  on    ,  at 

.3.  That,  thereby,  the  said  last-mentioned  goods  and  chattels  were 

wholly  lost  to  the  said  plaintiff. 

Form  of  Count  Against  Bailee  for  Not  Re-delivering  Goods  Bailed 

The  plaintiff  says: 

1.  That,  heretofore,  to  wit,  on   ,  at   ,  in  consideration  that 

105;     Cadwell    v.    Peninsular    State  Beller  v.  Shultz,  44  Mich.  529. 

Bank,     195    Mich.    407;     Banks    v.  2  Kearney    v.    Glutton,    101    Mich, 

Strong,    197    Mich.    544;    Pesola    v.  106;    Hubbell   v.    Blandy,   87    Mich. 

Forsten,    182    Mich.    94;    Edgar    v.  209;    Donlin   v.   McQnade,   61   Mich. 

Farsell,    184    Mich.    522;    Fraam    v.  275;   Hicks  v.  Lyle,  46  Mich.  488. 

Grand  Raj.ids,  etc.,  R.  Co.,  161  Mich.  3  Knights   v.   Piella,   111    Mich.    9 

556;  Kjiights  v.  Piella,  111  Mich.  9;  (what  may  be  shown  under  general 

Hofer     v.     Hodge,     52     Mich.     372;  issue). 


Bailment  201 

the  said  plaintiff,  at  the  request  of  the  said  defendant,  delivered  certain 
goods,  to  wit,  ,  of  great  value,  to  wit,  of  the  value  of  dol- 
lars, of  him,  the  said  plaintiff,  to  the  said  defendant,  on  the  terms  that 
the  said  defendant  should  safely  keep  and  take  care  of  the  said  gooda 
and  re-deliver  the  same  to  the  said  plaintiff  on  request,  the  said  defend- 
ant undertook  and  promised  the  said  plaintiff  that  he  would  safely  keep 
and  take  care  of   the  said  goods  and  -would  re-deliver  them  to  the  said 

plaintiff  upon  request.     2.  That  afterwards,  to  wit,  on   ,  at   , 

the  said  plaintiff  requested  the  said  defendant  to  re-deliver  the  said  goods 
to  him.  3.  That  a  reasonable  time  for  the  re-delivery  thereof  has  elapsed. 
4.  That  the  said  defendant  has  not  re-delivered  the  said  goods  to  the 
said  plaintiff,  or  any  part  thereof. .  5.  That  thereby  the  said  plaintiff 
was  prevented  from  having  and  using  the  said  goods  and  the  same  are 
lost  to  the  said  plaintiff. 

Form  of  Count  Against  the  Hirer  of  a  Horse  for  Carelessness 

The  plaintiff  says: 

1.  That,  heretofore,  to  wit,  on   ,  at   ,  in  consideration  that 

the  said  plaintiff,  at  the  request  of  the  said  defendant,  would  let  to  hire 
and   deliver   to  the   said   defendant   a   certain  horse  of   the  said  plaintiff 

of  great  value,  to  wit,  of  the  value  of    dollars,  to  be  used  by  the 

said  defendant  for  reward  to  the  said  plaintiff  upon  the  terms  that  the 
said  defendant  should  use  said  horse  in  a  careful,  moderate  and  reasonable 
manner  while  he  would  have  the  same  on  hire,  the  said  defendant  under- 
took and  promised  the  said  plaintiff  that  he  would,  while  he  should  have 
the  said  horse  on  hire,  use  the  same  in  a  careful,  moderate  and  reasonable 

manner.     2.  That   the   said   plaintiff    did    afterwards,   to   wit,    on    , 

at    ,   let  to   hire  and  deliver  to   the   said  defendant,   and  the   said 

defendant  received  from  the  said  plaintiff,  the  said  horse,  for  the  purpose 
and  upon  the  terms  aforesaid.  3.  That  the  said  defendant,  afterwards, 
to  wit,  on ,  at ,  while  he  had  the  said  horse  on  hire  as  afore- 
said, did  not  use  the  said  horse  in  a  careful,  moderate  and  reasonable  man- 
ner, but  carelessly,  immoderately  and  unreasonably  used  the  same.  4. 
That,  by  and  through  the  said  careless,  immoderate  and  unreasonable  use 
thereof,  the  said  horse  became  and  was  greatly  lamed  and  hurt,  and  re- 
mained and  continued  so  for  a  long  time,  to  wit,  thence  hitherto.  5.  That 
thereby,  during  all  said  time  the  said  plaintiff  has  been  deprived  of  the 
use  of  said  horse.  6.  That  also  the  said  horse  thereby  became  and  was 
greatly  damaged  and  deteriorated  in  value. 

Form  of  Count  Against  the  Hirer  of  a  Horse  for  Going  a  Different  Jour- 
ney than  That  for  Which  the  Horse  Was  Hired,  and  for  Using 
the  Horse  Immoderately 

The  plaintiff  says: 

1.  That,  heretofore,  to  wit,  on   ,  at   ,  in  consideration  that 

the  said  plaintiff,  at  the  request  of  the  said  defendant,  would  let  to  hire 
and   deliver   to   the   said    defendant   a   certain   horse   of   the    said    plaintiff 


202  Bailment 

of  great  value,  to  wit,   of  the  value  of    dollars,  upon   the  terms 

that  the  said  defendant  might  use  the  said  horse  to  go  and  perform  a 

certain  journey,  to  wit,  from to and  thence  back  to 

aforesaid,  for  a  reasonable  reward  to  the  said  plaintiff,  the  said  defendant 
undertook  and  promised  the  said  plaintiff  that,  while  he  should  have  the 
said  horse  on  hire  for  the  purpose  and  upon  the  terms  aforesaid,  he  would 
use  the  said  horse  in  a  careful,  moderate  and  reasonable  manner.     2.  That 

the  said  plaintiff  did  afterwards,  to  wit,  on ,  at ,  let  to  hire 

and  deliver  the  said  horse  to  the  said  defendant,  and  the  said  defendant 
received  the  same  from  the  said  plaintiff,  for  the  purpose  and  upon  the 

terms  aforesaid.     3.  That  the  said  defendant  afterwards,  to  wit,  on , 

at    ,  while  he  had  the  said   horse  on  hire  as  aforesaid,  went  and 

performed  a  different  journey  than  the  journey  aforesaid,  to  wit,  a  jour- 
ney  from    to    ,   and   thence   back   to    aforesaid,   with 

the  said  horse.  4.  That,  in  about  going  and  performing  the  last  afore- 
said journey,  the  said  defendant  carelessly,  immoderately  and  unreason- 
ably used  the  said  horse.  5.  That,  by  and  through  going  and  performing  the 
last-mentioned  journey  with  the  said  horse  and  said  careless,  immoderate  and 
unreasonable  use,  the  said  horse  became  and  was  greatly  lamed  and  hurt, 
and  so  remained  and  continued  for  a  long  time,  to  wit,  thence  hitherto. 
6.  That  thereby  the  said  plaintiff  has  been  deprived  of  the  use  of  said 
horse  during  all  of  said  time.  7.  That  also  thereby  the  said  horse  be- 
came and  was  greatly  damaged  and  deteriorated  in  value. 

Form  of  Count  Against  a  Watchinaker  for  Not  Using  Due  Care  in  Repair- 
ing a  Watch,  for  Not  Caring  for  It,  and  for  Not  Returning 
It  on  Request 
The  plaintiff  says: 

1.  That  before  and  at  the  time  of  the  making  of  the  promise  and  under- 
taking next  hereinafter  mentioned,  the  said  defendant  was  a  watchmaker 

to  wit,  at    2.  That  thereupon,  to  wit,  on    ,  at    ,  in 

consideration  that,  at  tie  request  of  the  said  defendant,  the  said  plain- 
tiff delivered  to  the  said  defendant  a  watch  of  the  said  plaintiff  of  great 
value,  to  wit,  of  the  value  of  dollars,  and  employed  the  said  de- 
fendant to  repair  the  same  as  such  watchmaker  for  a  reward  to  the  said 
defendant,  the  said  defendant  undertook  and  promised  the  said  plaintiff 
that  he  would  use  due  and  proper  care,  skill  and  diligence  in  repairing 
said  watch  and  would  take  due  and  proper  care  thereof  while  the  same 
was  in  his  possession  and  would  re-deliver  the  same  to  the  said  plain- 
tiff on  request.  3.  That  the  said  defendant  did  not  use  due  and  proper 
care,  skill  and  diligence  in  repairing  said  watch  and  in  keeping  it  while 
it  was  in  his  possession  but  carelessly,  unskillfully  and  negligently  be- 
haved himself  in  the  premises  since  the  delivery  of  the  said  watch  to  him. 
4.  That  through   said  carelessness,  unskillfulness  and  negligence,  the  said 

watch  became  broken,   injured  and   deteriorated  in  value,  to  wit,    

dollars.  5.  That  the  said  plaintiff  has  requested  the  said  defendant  to 
re-deliver  the  said  watch  to  the  said  plaintiff,  to  wit,  on ,  at 


Bii>L  OF  Exceptions  20o 

6.  That  a  reasonable  time  has  elapsed  for  the  said  defendant  to  re-deliver 
the  same  to  the  said  plaintiff.  7.  That  the  said  defendant  has  not  re- 
delivered the  same.  8.  That  thereby  the  said  plaintiff  has  been  deprived 
of  the  use  and  value  of  the  said  watch. 

BANKRUPTCY 

See  Fraudulent  Debtors. 

BANKS 

See  Executions  (levy  on  sliares  of  stock);  Garnishment  (of  deposits). 

BAR 

See  Attorneys;   Limitation  of  Actions;    Judgments. 

BEASTS 

See  Animals. 

BENCH  WARRANT 

A  bench  warrant  is  a  process  issued  by  the  court  it- 
self, or  from  the  bench,  for  the  attachment  or  arrest  of 
a  person,  either  in  case  of  contempt,  or  where  an  indict- 
ment has  been  found  against  him.^ 

BIDS 

See  Executions. 

BILL  OF  COSTS 

See  Costs. 

BILL  OF  EXCEPTIONS 

§  1.  Function  of  bill. 

§  2.  Theory    and    practice   relative    to   exceptions. 

§  3.  Necessity. 

§  4.  Time   for  settling   bill. 

§  5.  Extension  of  time. 

§  6.  Contents  of  bill. 

S  7.  Rulings  after  verdict. 

1  Oxford  V.  Berry,  204  Mich.  197. 


204  Bill  of  Exceptions  §  1 

§    8.  Practice  in  settling Assignments  of  error. 

§    9.  Settlement  where  trial  judge  dead  or  otherwise  unavailable. 

§  10.  Furnishing  stenograjjher  's  minutes. 

§  11.  Disposition   of  bill  when  settled. 

§  12.  Stay   of  proceedings  pending  issuance   of  writ  of  error. 

§  13.  Conclusiveness  of  bill  as  to  its  accuracy. 

Cross-References:  Case  Made;  Exceptions;  Error,  Writ  of;  Man- 
damus; Assignments  of  Error. 

§  1.  Function  of  bill. 

When  a  cause  is  removed  from  an  inferior  to  an  ap- 
pellate court,  the  record  in  the  case  is  the  object,  and 
the  only  object,  of  investigation,  and  the  purpose,  and 
only  purpose,  of  the  investigation  is  to  discover  whether 
the  inferior  court,  in  the  proceedings  had  in  that  court, 
has  erred  in  matter  of  law  to  the  j)rejudice  of  the  appel- 
lant. 

The  ordinary  record  in  a  cause  consists  of  the  process, 
the  pleadings,  the  verdict  and  the  judgment,  but  does 
not  include  the  evidence  adduced  on  the  trial  of  the 
cause  or  the  arguments  of  counsel  or  the  charge  of  the 
court  to  the  jury.  But  very  often,  and  more  frequently 
than  otherwise,  the  errors  committed  or  alleged  to  have 
been  committed  by  the  court  in  arriving  at  the  judg- 
ment occur  at  the  trial,  either  in  admitting  or  rejecting 
a  juror,  in  permitting  or  refusing  to  permit  a  witness  to 
testify,  in  admitting  or  rejecting  evidence,  or  in  instruct- 
ing or  refusing  to  instruct  the  jury,  and  the  like,  all  of 
which  do  not  appear  at  all  upon  the  record,  and  hence 
are  not  open  to  review  when  the  cause  is  taken  to  the 
appellate  court  upon  the  ordinary  record.  It  is  the  func- 
tion of  the  bill  of  exceptions  to  place  the  rulings,  de- 
cisions or  action  of  the  court  in  these  matters  upon  the 
record,  so  that  they  will  form  a  part  of  it  and  be  subject 
to  the  consideration  of  the  appellate  tribunal. 

The  bill  of  exceptions  is  a  device  which  was  intro- 
duced into  the  practice  of  England  by  the  statute  of 
Westminster  II,  and  has  been  in  use  in  the  courts  of 


§  2  Bill  of  Exceptions  205 

common  law  jurisdiction  from  that  remote  day  to  the 
present  time. 

§  2.  Theory  and  practice  relative  to  exceptions. 

Under  the  former  practice  in  this  state,  as  well  as  in 
most  other  jurisdictions,  it  was  necessary  for  a  party 
who  intended  to  complain  of  the  rulings  and  action  of 
the  court  in  the  progress  of  the  trial  on  the  matters  just 
mentioned  to  take  exceptions  thereto.  An  exception 
was  required  because,  when  no  exception  was  taken,  it 
was  but  natural  for  the  court  and  the  opposite  party  to 
conclude  that  the  party  against  whom  the  ruling  Avas 
made  intended  to  acquiesce,  and  the  attention  of  the 
judge  was  not,  therefore,  so  strongly  turned  to  the  ques- 
tion and  he  would  be  less  likely  to  re-consider  it  or  hear 
further  argument  upon  it  than  if  an  exception  were 
taken,  and,  moreover,  the  adverse  party,  if  an  exception 
were  taken,  would  have  the  option  of  receding  from  his 
position  rather  than  to  hazard  the  delay  and  expense  of 
having  the  case  reviewed  in  an  appellate  court,^  or  he 
might  remedy  the  alleged  error  by  introducing  other  evi- 
dence or  taking  some  other  affirmative  action. 

But  now,  by  statutory  provision,  it  is  not  necessary  in 
the  trial  of  any  action  or  proceeding  in  any  court  of  rec- 
ord to  except  to  any  ruling  or  action  of  the  court,  if  an 
objection  thereto  bo  duly  made,  but  an  exception  will  be 
deemed  to  follow  as  a  matter  of  course,  nor  is  it  necessary 
to  except  in  any  case  to  the  charge  of  the  court  to  the  jury 
or  to  the  refusal  of  the  court  to  charge  as  requested,  so 
that  any  party  who  considers  himself  aggrieved  by  any 
such  ruling,  action,  charge  or  refusal  to  charge  may  as- 
sign errors  the  same  as  if  an  exception  had  been  actually 
taken.^    However,  exception  must  be  taken  to  a  refusal  to 

1  Turner  V.  City  of  Grand  Eapids,  2Juil.    Act,    eli.     18,     §§57,    GO; 

20  Mich.  .'590.  Comp.  Laws  1915,  SS  12029,   12();i2; 


206  Bill  of  Exceptions  §  2 

grant  a  motion  for  a  new  trial  if  error  is  to  be  assigned  on 
the  refusal.'  So,  also,  exceptions  should  be  filed  to  a  spe- 
cial finding  of  facts ;  *  otherwise  the  only  question  which 
can  be  considered  by  the  appellate  court  is  whether  the 
findings  support  the  judgment.^ 

It  is  the  office  of  a  bill  of  exceptions  to  present  the  spe- 
cific points  involved  upon  the  record,  and  a  bill  of  excep- 
tions is,  therefore,  a  bill  or  statement  of  the  rulings,  de- 
cisions or  doings  as  to  which  a  party  has  the  benefit  of  an 
exception. 

§3.  Necessity. 

Where  a  review  on  writ  of  error  is  desired,  a  bill  of  ex- 
ceptions is  necessary  to  review  rulings  as  to  evidence, 
alleged  errors  in  the  charge  or  refusal  to  charge,  ruling 
upon  alleged  inconsistency  between  a  general  verdict  and 
special  findings,  and  generally  the  refusal  of  a  motion  for 
a  new  trial.  Where  the  trial  was  without  a  jury  a  bill 
is  necessary  to  review  rulings  on  evidence,  or  a  claim  that 
the  undisputed  evidence  calls  for  an  additional  finding  or 

Comp.  Laws  1915,  §  14568;  Eohrner  5  Rice  v.   City   of  Muskegon,   150 

V.    Labo,    191    Mich.    55.     See   also  Mich.  679;   Peabody  v.  McAvoy,  23 

Exceptions.  Mich.    526;    Haines    v.    Saviers,    93 

3Jud.    Act,    eh.    18,    §63;    Comp.  Mich.    440;    Griffin    v.    Johnson,    37 

Laws    1915,    §12635;    Hotchkiss    v.  Mich.    87;    Plummer    v.    Abbey,    39 

Weinmann-Matthews  Co.,  175  Mich.  Mich.  167;   Green  v.  Gill,  47   Mich. 

652;   Eeynick  v.  Allington  &  Curtis  86;   Irwin  v.  Schlief,  48  Mich.  237 

Mfg.  Co.,  179  Mich.  630;   Comstock  Wertin    v.    Crocker,    47    Mich.    642 

V.    Taggart,    156    Mich.   47;    People  Cragin    v.    Gardner,    64    Mich.    399 

V.  Sartori,  168  Mich.  308;   Knop  v.  Keystone   Lumber  &   Salt   Mfg.   Co. 

National,   etc.,   Ins.    Co.,    101    Mich.  v.   Jonkinson,   69  Mich.  220;   Dodge 

359;    Culver   v.    South   Haven,   etc.,  v.    Kennedy,    93    Mich.    547;     Bar- 

R.   Co.,  144  Mich.   254;   In  re  Ben-  num    v.    Andrews,    106    Mich.    81; 

der's  Estate,  159  Mich.  108;   Pearl  Hubbard  v.  Garner,  115  Mich.  406; 

V.   Township   of   Benton,   136   Mich.  Gemberling    v.    Lazarus,    100    Mich. 

697;  Moffet  v.  Sebastian,  149  Mich.  324;    Weist   v.    Morlock,    116   Mich. 

451;  Heikkala  V.  Isaacson,  178  Mich.  606;  Butts  v.  Davis,  50  Mich.  310. 
176. 

4  Jud.    Act,    ch.    18,    §15;    Comp. 
Laws  1915,  §  12587. 


§  5  Bill  of  Exceptions  207 

that  the  testimony  does  not  warrant  the  actual  findings. 
In  short,  a  bill  is  necessary  where  anything  outside  the 
record  is  sought  to  be  reviewed  by  writ  of  error.^  But  a 
bill  is  not  necessary  for  a  decision  of  the  question 
whether  the  findings  of  fact  support  the  judgments  A 
bill  is  necessary  to  bring  up  for  review  rulings  admitting 
or  excluding  evidence.®  Facts  which  should  be  presented 
by  bills  of  exceptions,  will  not  be  noticed  when  appearing 
in  any  other  form.  Thus  the  recitals  in  an  order  denying 
a  motion  for  a  new  trial,  cannot  be  looked  to  as  supply- 
ing the  place  of  a  bill  of  exceptions.® 

§  4.  Time  for  settling  bill. 

By  rule  of  court,  a  party  is  always  entitled  to  not  less 
than  twenty  days  after  the  entry  of  judgment  for  the  set- 
tlement of  a  bill  of  exceptions.^"  In  cases  where  judg- 
ment has  been  entered  in  vacation  under  the  statute,^^ 
notice  of  entry  is  an  essential  accompaniment,  and  the 
time  for  settling  a  bill  of  exceptions  begins  to  run  from 
the  time  of  such  notice."  And  where  a  motion  for  a  new 
trial  has  been  made,  the  time  for  settling  a  bill  of  excep- 
tions runs  from  the  denial  of  such  motion.^' 

§  5. Extension  of  time. 

The  Judicature  Act  provides  that  ''the  court  or  the  cir- 
cuit judge  at  chambers  may  allow  such  time  as  shall  be 

6  City  of  riint  v.  Genesee  Circuit  Time  begins  to  run  from  entry  of 
Judge,  146  Mieh.  439,  appeal  from  judgment  rather  than  from  entry  of 
probate  court.  verdict.       Eayl    v.     Wayne     Circuit 

7  Hubbard    v.    Garner,    115    Mich.  Judge,  91  Mich.  4. 

406.  llJud.   Act,   eh.    18,    §14;    Comp. 

STrudo     V.     Anderson,    10  Mich.       Laws  1915,   §12586. 
;i57.  12  People  v.  Wilson,  12  Mich.  25; 

9  Monnier     v.     Mizner,     17  Mich.       McClung  v.  McCTung,  1^59  Mich.  55. 
271.  18  Harper  v.  Wayne  Circuit  Judge, 

lOCir.    Ct.    Rule    66,    §1;  Lake       155    Mich.    54.T ;     Kaiser    v.    Wayne 
Siiore,  etc.,  E.  Co.  v.  Branch  Circuit       Circuit  Judge,  162  Mich.  247. 
Judge,  116  Mich.  399. 


208  Bill  of  Exceptions  §  5 

deemed  reasonable  to  settle  such  exceptions  and  reduce 
the  same  to  form:  Provided,  That  no  more  than  twenty- 
days  shall  be  allowed  for  such  purpose,  except  upon  the 
production  of  a  certificate  from  the  stenographer  of  said 
circuit  stating  that  the  party  desiring  such  extension  has 
ordered  a  transcript  of  the  testimony  necessary  for  the 
preparation  of  said  bill  of  exceptions,' and  that  the  same 
will  be  furnished  as  soon  as  possible  by  said  stenographer. 
If  a  motion  for  a  new  trial  is  made  within  said  twenty 
days,  and  such  motion  be  denied  the  time  to  settle  a  bill 
of  exceptions  may  be  extended  twenty  days  from  the 
date  of  such  denial  without  the  production  of  such  cer- 
tificate."" 

By  rule  of  court,  it  is  provided  as  follows:  "Subject 
to  the  limitations  prescribed  by  statute,  and  upon  such 
terms  and  conditions  as  shall  be  deemed  just,  the  court 
may  grant  such  further  reasonable  time  as  shall  be 
deemed  proper  for  a  settlement  of  a  bill  of  exceptions  or 
case,  and  may  extend  such  time  when  proper.  But  no 
more  than  sixty  days  further  time  shall  be  granted  for 
that  purpose,  except  for  good  cause  shown  by  affidavit 
on  special  motion  after  notice  to  the  adverse  party,  or  on 
the  written  stipulation  of  the  parties.  "^^ 

There  has  been  more  or  less  confusion  as  to  the  proper 
construction  of  the  statute  and  rule  of  court  as  to  exten- 
sion of  time  for  the  settlement  of  a  bill  of  exceptions 
which  is  not  entirely  cleared  away  by  a  number  of  recent 
decisions  on  the  subject.  It  is  settled,  however,  that  the 
requirement  as  to  the  stenographer's  certificate  applies 
only  to  the  first  extension  beyond  the  twenty-day 
period. ■^^ 

Although  eighty  days  have  elapsed  since  the  entry 
of  judgment,  and  during  such  period  no  extension  of 

14Jud.    Act,   ch.    18,   §62;    Comp.  16  Brevoort      v.      Wayne      Circuit 

Law8   1915,   §  12634.  .Judge,  203  Mich.  388. 

16  Cir.  Ct.  Eule  66,  §  2. 


§5 


Bill  of  Exceptions 


209 


time  lias  been  granted,  the  court  has  authority  to  order 
an  extension  on  cause  shown  ^'  and  the  production  of  the 
certificate  of  the  stenographer,"  but  such  an  order  can- 
not be  granted  ex  parte  and  without  cause  shown  more 
than  eighty  days  after  entry  of  judgment,^^  nor  beyond 
eighty  days.^°  The  notice  and  showing  may,  however, 
be  waived  by  the  opposite  party  either  by  stipuhition  in 
writing  or  in  open  court. ^^  Without  a  written  stipuhi- 
tion,  the  judge  cannot  be  required,  as  matter  of  course, 
to  extend  the  time  beyond  the  twenty  days,^^  but  with 
one  he  can  be.^^  The  matter  of  granting  an  extension 
of  time  is  within  the  sound  discretion  of  the  trial  court 
and  it  must  be  clear  that  his  discretion  has  been  abused 
before  his  determination  of  it  will  be  overruled.^*  The 
right  to  extend  the  time  is  not  at  all  dependent  upon 
whether  a  bond  to  stay  proceedings  has  been  given. ^^ 


17  Eoach  V.  Wayne  Circuit  Judge, 
117  Mich.  242. 

ISJud.  Act,  eh.  18,  §62;  Comp. 
Laws    1915,    §12634. 

19  Singer  v.  Livingston  Circuit 
Judge,  117  Mich.  318;  Burgess  v. 
Wayne  Circuit  Judge,  171  Mich. 
583;  Hayes  v.  Ionia  Circuit  Judge, 
125  Mich.  277;  Yerkes  v.  Antrim 
Circuit  Judge,  200  Mich.  443. 

Affidavit  is  necessary.  Northern 
Assur.  Co.  V,  Houghton  Circuit 
Judge,   169  Mich.  238. 

20  Burgess  v.  Wayne  Circuit 
Judge,  171  Mich.  583;  Roach  v. 
Wayne  Circuit  Judge,  117  Mich. 
242;  Kaiser  v.  Wayne  Circuit 
Judge,  162  Mich.  247;  Singer  v. 
Livingston  Circuit  Judge,  117  Mich. 
318;  Pettinger  v.  Montmorency  Cir- 
cuit Judge,  164  Mich.  463. 

21  Wilkins  v.  Genesee  Circuit 
Judge,  125  Mich.  628;  Culver  v. 
Van  Buren  Circuit  Judge,  141  Mich. 
644;  Burgess  v.  Wayne  Circuit 
Judge,   171   Mich.   583. 

1  Abbott— 14 


22  Lake  Shore,  etc.,  E.  Co.  v. 
Branch  Circuit  Judge,  116  Mich. 
399. 

23  People  V.  Kalamazoo  Circuit 
Judge,  39  Mich.  123. 

24  Gamble  v.  Oceana  Circuit 
Judge,  204  Mich.  410;  Smilansky  v. 
Wayne  Circuit  Judge,  186  Mich. 
463 ;  Stockwell  v .  Eaton  Circuit 
Judge,  172  Mich.  166;  Roberge  v. 
DeLisle,  158  Mich.  16;  Carrier  v. 
Emmet  Circuit  Judge,  155  Mich. 
344;  Lake  Shore,  etc.,  R.  Co.  v. 
Chambers,  89  Mich.  5;  Fitzgibhons 
v.  Ionia  Circuit  Judge,  152  Mich. 
209;  Lavigne  v.  Wayne  Circuit 
Judge,  193  Mich.  416;  People  v. 
Manistee  Circuit  Judge,  194  Mich. 
527. 

However,  mandamus  lies  in  case  of 
abuse  of  discretion.  People  v.  Man- 
istee Circuit  Judge,   194  Mich.  527. 

25  Marshall  v.  Saginaw  Circuit 
.Judge,  156  Mich.  289;  Harper  v. 
Wayne  Circuit  .Judge,  155  Mich. 
543. 


210  Bill  of  Exceptions  §  5 

A  second  or  further  extension  of  time  may  be  granted, 
for  cause  shown,  after  notice,  in  the  discretion  of  the 
judge,  without  any  stenographer's  certificate,^^  and  al- 
though the  motion  is  not  made  until  after  the  extension 
already  granted  has  expired.^'  However,  under  some 
decisions,  it  seems  that  the  judge  has  no  power  to  grant 
a  further  extension  of  time  where  the  transcript  has  ac- 
tually been  furnished  for  a  long  time  and  the  application 
is  not  made  until  several  months  after  the  expiration  of 
the  prior  extension  of  time.^'  What  constitutes  ''good 
cause"  for  extending  the  time  is  not  susceptible  of  defi- 
nition,'^® although  it  is  clear  that  ''good  cause"  cannot 
be  confined  exclusively  to  delays  in  the  furnishing  of 
the  stenographer's  transcript.^® 

Form  of  Certificate  from  Stenographer  of  Order  for  Transcript  of 

Testimony 

(Title  of  court  and  cause.) 
I,  G.  H.,  stenographer  of   said  court,  do  hereby  certify  that  the  said 

defendant    (or,  plaintiff),   on  the    day   of    ,  A.  D , 

ordered  a  transcript  of  the  testimony  necessary  for  the  preparation  of 
a  bill  of  exceptions  in  this  cause  and  that  said  transcript  will  be  fur- 
nished by  me  as  soon  as  possible. 

§  6.  Contents  of  bill. 

A  bill  of  exceptions  should  contain  only  such  parts 
of  the  testimony  and  only  such  parts  of  the  charge  as  are 
necessary  to  present  the  questions  of  law  raised  by  the 
assignments  of  error,  and  should  contain  such  other  mat- 
ters as  by  rule  or  statute  are  required  to  be  set  forth 

26  Brevooit  v.  Wayne  Circuit  Hardware  Co.  v.  Wayne  Circuit 
Judge,  203  Mich.  :i88.  Judge,  197  Mich.  374. 

27  Brevoort  v.  Wayne  Circuit  29  See  Brevoort  v.  Wayne  Circuit 
Judge,  203  Mich.  388;  Kaiser  v.  Judge,  203  Mich.  388,  where  change 
Wayne  Circuit  Judge,  162  Mich.  247,  of  attorneys  held  good  ground;  La- 
overruling  on  rehearing  a  contrary  vigne  v.  Wayne  Circuit  Judge,  193 
rule;  Pettinger  v.  Montmorency  Cir-  Mich.  416,  illness  of  attorneys. 

cuit  Judge,  164  Mich.  463.  80  Brevoort      v.      Wayne      Circuit 

28  Gamble      v.      Oceana      Circuit      Judge,  203  Mich.  388. 
.Judge,  204  Mich.  410;    Boyne  City 


§  6  Bill  of  Exceptions  •  211 

therein.^^  The  testimony  should  be  set  out  in  narrative 
form  unless  the  trial  court  determines  it  necessary  to  a 
full  understanding  of  the  questions  involved  that  it  be 
set  out  in  full  or  in  part  by  question  and  answer,  in 
which  case  the  trial  court  must  so  certify  in  writing.^^ 

The  bill  of  exceptions  should  exhibit  the  points  of  the 
decision  or  action  of  the  court  which  the  party  intends  to 
rely  upon,  but  it  should  set  forth  only  so  much  of  the 
testimony  as  is  necessary  fairly  to  present  the  questions 
of  law  involved,  embodying  it,  when  possible,  in  a  con- 
densed narrative  form.^'  It  should  not  constitute  a  nar- 
rative of  all  the  evidence  and  proceedings  on  the  trial;  '* 
still  less  should  it  consist  of  a  verbatim  copy  of  the  sten- 
ographer's minutes  with  the  addition  of  the  usual  head- 
ing and  conclusion.^^  It  is  the  duty  of  a  party  preparing 
a  bill  of  exceptions  to  make  it  both  concise  and  correct  in 
its  allegations,  but,  where  there  is  room  for  difference  of 
opinion  concerning  the  tendency  of  testimony,  it  may 
sometimes  be  necessary  to  give  the  testimony  itself  on 
the  disputed  point.^®  So,  also,  when  the  question  is 
whether  the  trial  court  should  have  taken  the  case  from 
the  jury,  all  the  testimony  may  be  incorporated  in  the 
bill  of  exceptions.^' 

If  it  does  not  appear  that  a  bill  of  exceptions  contains 
all  the  testimony  in  substance,  it  will  be  presumed  that 
testimony  was  introduced  to  warrant  the  verdict,^'  or 

31  Cir.  Ct.  Rule  66,  §  4.  Circuit  Judge,  32  Mich.  259 ;  Snyder 

32  Cir.  Ct.  Rule  66,  §  8.  v.    Willey,    33    Mich.    483 ;    Cole    v. 
83  Welch  V.  Palmer,  85  Mich.  310;       Ingham  Circuit  Judge,  77  Mich.  619; 

Cole   V.    Ingham    Circuit    Judge,    77  Welch    v.    Palmer,    85    Mich.    310; 

Mich.    619;    Continental   Ins.   Co,    v.  Pease  v.  Munro,  83  Mich.  475;  Rico 

Ilorton,    28    Mich.    173;     Smith    v.  v.  Rice,  50  Mich.  448. 
Barstow,   2   Doug.    155;    Maybee   v.  36  Whitaker   v.    Kilroy,    70    Mich. 

Trogont,  47  Mich.  495.  635;  People  v.  La  Miinion,  64  Mich. 

34  Turner  v.   City  of  Grand  Rap-  709. 

ids,  2U  Mich.  390.  37  Finch  v.  Karste,  97  Mich.  20. 

35  Frankenberg  v.  First  Nat.  38  Manning  v.  Bresnahan,  63 
Bank,  33  Mich.  46;  People  v.  Wayne      Mich.  584;  Taff  v.  Hosmer,  14  Mich. 


212 


Bill  of  Exceptions 


§6 


the  charge  of  the  court  to  the  jiiry,^^  or  the  finding  of 
the  jury  in  answer  to  special  questions  submitted  to 
them.*"  But  where  the  bill,  although  neither  giving  nor 
expressly  purporting  to  give  the  testimony  in  full,  shows 
a  connected  narrative  of  the  testimony  of  each  witness, 
and  closes  with  the  statement,  ''and  thereupon  the  de- 
fendants rested  their  case,"  it  will  be  presumed  to  em- 
brace all  the  evidence  bearing  on  the  questions  raised.*^ 
The  certificate  need  not  expressly  state  that  all  the 
evidence  is  contained  therein.*^  Where  the  exception 
relied  on  is  the  refusal  to  direct  a  verdict  when  plaintiff 
rested,  it  is  proper  to  refuse  to  permit  the  bill  of  excep- 
tions to  contain  only  the  evidence  given  on  behalf  of 
plaintiff,  where  defendant  introduced  evidence.*^  Where 
the  error  assigned  relates  to  the  ruling  on  a  motion  to 
direct  a  verdict  it  is  reviewable  if  "substantially"  all 
the  evidence  is  set  out.**    But  a  certificate  that  the  bill 


309;  Gass  v.  Van  Wagoner,  63  Mich. 
610;  Borden  v.  Clark,  26  Mich.  410; 
Daniels  v.  Clegg,  28  Mich.  32 ;  Berry 
V.  Monroe,  57  Mich.  187 ;  Grosvenor 
V.  Ellis,  44  Mich.  452;  Barnes  v. 
Michigan  Air  Line  E.  Co.,  54  Mich. 
243;  Rolfe  v.  Dudley,  58  Mich.  208; 
Young  V.  Taylor,  36  Mich.  25; 
Freese  v.  Arnold,  99  Mich.  13;  Boyer 
V.  Soules,  105  Mich.  31. 

39  Wilson  v.  Bowen,  64  Mich.  134; 
Curley  v.  Wyman,  34  Mich.  353; 
Greenlee  v.  Lowing,  35  Mich.  63; 
Wood  V.  Lake  Shore,  etc.,  R.  Co.,  49 
Mich.  370;  Cummings  v.  People, 
42  Mich.  142;  Botsford  v.  Chase, 
108  Mich.  432;  Westra  v.  Westra's 
Estate,  101  Mich.  526;  Saunders  v. 
Closs,  117  Mich.  130;  Boyer  v. 
Soules,  105  Mich.  31;  Hoffman  v. 
Pack,  114  Mich.  1. 

40  Stevens  v.  Rose,  69  Mich.  259. 

41  Ironwood  Store  Co.  v.  Harri- 
son, 75  Mich.  197;  Carter  v.  Snyder, 


27  Mich.  484.  See  also  Hitchcock 
V.  Burgett,  38  Mich.  501;  Hatch  v. 
Reid,  112  Mich.  430;  Godkin  v. 
Obenaucr,  113  Mich.  93;  Connor  v. 
Lake  Shore,  etc.,  R.  Co.,  158  Mich. 
688;  Atlas  Mining  Co.  v.  Johnston, 
23  Mich.  36;  Shaw  v.  Hoffman,  25 
Mich.  162;  Hitchcock  v.  Burgett,  38 
Mich.  501. 

42  See  Godkin  v.  Obenauer,  113 
Mich.  93;  Hatch  v.  Reid,  112  Mich. 
430. 

Sufficient  v\here  ])ill  is  certified  to 
contain  the  subject  of  all  testimony 
given  on  the  trial  affecting  the  ex- 
ceptions noted,  although  testimony 
is  in  abbreviated  narrative  form. 
Farrell  v.  Danbury,  141  Mich.  81. 

43  Morgan  v.  Kent  Circuit  Judge, 
150  Mich.   64. 

44  Goldsmith  v.  Liehtenberg,  139 
Mich.  163;  Burton  v.  Variety  Iron 
Works,  126  Mich.  140. 


§  6  Bill  of  Exceptions  213 

contains  all  of  the  evidence  is  not  conclusive  where  the 
record  shows  the  contrary,*^  and  is  improper  when  not 
strictly  true.  Error  of  the  trial  court  in  refusing  to  re- 
ceive evidence  offered  should  appear  affirmatively  from 
the  bill  of  exceptions.*^  Where  any  documentary  evi- 
dence is  excluded  by  the  trial  court,  or  a  portion  is  ad- 
mitted and  the  claim  is  that  the  whole  should  have  been 
introduced,  such  evidence  not  introduced  or  excluded 
should  be  made  a  part  of  the  bill  of  exceptions,  so  that 
the  appellate  court  can  judge  of  its  admissibility.*'  Error 
will  not  be  presumed.*^ 

The  arguments  of  counsel  on  objections  to  the  admis- 
sion of  evidence  should  form  no  part  of  a  bill  of  excep- 
tions." 

The  bill  should  show  the  precise  theory  of  the  case 
and.  the  issues  should  not  be  confused.^"  If  a  review  is 
desired  in  regard  thereto,  instructions,  given  or  re- 
fused,"^ affidavits  relating  to  motions,^^  depositions,^^  mo- 
tions to  strike  out  pleadings  or  parts  thereof  and  the 
rulings  thereon,"  etc.,  must  be  included  in  the  bill.  Find- 
ings of  fact  by  the  court  are  part  of  the  record,  and  hence 
need  not  be  included.^^     If  an  exception  is  necessary  to 

46  See  People  v.  Slayton,  123  Mich.  61  Wagar   v.   Peak,   22   Mich.    368 

397.  (holding    that    refused    requests    to 

46  American  Ins.  Co.  v.  Woodruff,  charge  are  not  a  part  of  the  record 
34  Mich.  6.  proper)  ;   Dennison  v.  Van  Wormer, 

47  Reynolds     v.     Continental     Ins.  107  Mich.  461. 

Co.,      36     Mich.      131;      People      v,  62  Leonard  v.  Woodward,  34  Mich. 

Coughlin,   67  Mich.  466;    State   Ins.  514;  Noble  v.  Bourke,  44  Mich.  193. 

Co,  V.  Reynolds,  35  Mich.  304.  63  Harvey   v.   McAdanis,  32   Mich. 

48  State  Ins.   Co.  v.  Reynolds,  35  472. 

Mich,    304;    Sloman    v.    Mercantile,  64  People    v.     Washtenaw    Circuit 

etc.,  Co,,  112  Mich.  258;  Rodman  v.  Judges,  1  Doug.  434,  449, 

Clark,    81    Mich.    466;    Turnbull    v.  66  Delashman   v.   Berry,   20   Mich, 

Richardson,  69  Mich.  400.  292 ;    Peek    v.    City    Nat.    Bank    of 

49  Welch  V.  Palmer,  85  Mich.  310.  Grand  Rapids,  51  Mich.  353. 
60  Maybee    v,    Tregent,    47    Midi, 

495. 


214  Bill  of  Exceptions  §  6 

obtain  a  review,^^  the  exception  must  appear  in  the  bill 

or  it  will  not  bo  considered." 

§  7.  Rulings  after  verdict. 

As  a  general  rule,  formerly  without  exception,  a  bill 
of  exceptions  in  a  civil  case  could  include  no  ruling  made 
after  verdict.^^  Thus,  questions  relating  to  the  taxation 
of  costs  cannot  be  so  included.^®  So  also  the  fact  of 
payment  of  the  judgment  cannot  be  properly  stated  in  a 
bill  of  exceptions,  and,  if  stated,  cannot  be  considered  as 
any  part  of  the  bill  or  of  the  record  in  the  case.^**  And 
the  refusal  of  the  court  to  grant  a  motion  for  a  new  trial 
could  formerly  not  be  included  in  the  bill;  ^^  but  it  is  now 
provided  by  statute  that,  in  all  cases  taken  to  the  su- 
preme court  on  writ  of  error  or  appeal,  where  a  motion 
for  a  new  trial  has  been  previously  refused  by  the  trial 
judge,  the  party  appealing  the  case  may  incorporate  in 
the  bill  of  exceptions  a  record  of  all  proceedings  had  on 
the  motion  for  a  new  trial,  including  the  reasons  given 
by  the  trial  judge  in  refusing  to  grant  a  new  trial,  and 
exceptions  may  be  taken  and  error  assigned  on  the  de- 
cision of  the  circuit  judge  in  refusing  the  motion,  and 

66  See  §  2,  ante,  and  see  Excep-  general  will  not  prevail.  Wallace  v. 
TIONS.  Finch,  24  Mich.  255. 

67  Comstock  V.  Smith,  26  Mich.  But  where  the  record  shows  an 
306;  WUkinson  v.  Earl,  39  Mich.  objection  taken  on  the  trial  in  the 
626;  MacLean  v.  Scripps,  52  Mich.  court  below  to  the  admission  of  evi- 
214;  Gillett  v.  Burns,  131  Mich.  denee  which  was  overruled,  the  court 
616;  Pearl  v.  Benton  Tp.,  136  Mich.  will  consider  the  objection,  although 
697;  Stauber  v.  Ellett,  140  Mich.  the  bill  did  not  show  an  exception  to 
271;  Cotherman  v.  Cotherman's  Es-  the  ruling;  and  wUl  presume  from 
tate,  58  Mich.  465.  the  signing  of  the  bill  of  exceptions 

Where  a  biU  of  exceptions  states  tliat  the  ruling  was  duly  excepted  to. 

that  it  was  agreed  upon  by  the  at-  McBride  v.  Cicotte,  4  Mich.  478. 
torneys  of  the  respective  parties,  and  58  Churchill  v.   Emeriek,  56  Mich, 

it   does   not   appear   that   any   claim  536. 

was  made  that  the  exceptions  were  69  Stebbins  v.  Field,  43  Mich.  333. 

too  general  to  be  incorporated  into  60  Watson  v.  Kane,  31  Mich.  61. 

the  record,  an  objection  on  the  argu-  61  Cuddy  v.  Major,  12  Mich.  368; 

ment  that   the  exceptions   were  too  Johr  v.  People,  26  Mich.  427. 


§  7  Bill  of  Exceptions  215 

the  same  will  be  reviewed  by  the  supreme  court ;  ^^  but 
the  question  will  not  be  considered  unless  the  bill  of  ex- 
ceptions embraces  the  reasons  given  by  the  trial  judge 
for  the  refusal,^^  provided  a  timely  request  to  file  such 
reasons  was  made,^*  although  if  the  request  is  made  and 
the  court  fails  to  comply  therewith  it  is  held  that  error 
may  be  assigned  on  the  refusal  to  grant  a  new  trial  where 
duly  excepted  to.^^ 

Form  of  Bill  of  Exceptions 

(Title  of  court  and  cause.) 

The  issue  in  this  cause  came  on  to  be  tried  by  a  jury  in  said  court 
before  the  Honorable  J.  S.,  circuit  judge,  at  a  session  of  said  court  held 

on  the    day  of    ,  A.  D ,   at  which   day  there   came 

as  well  the  said  plaintiff  as  the  said  defendant,  by  their  respective 
attorneys. 

The  plaintiff,  to  maintain  the  issue  on  his  part,  called  aa  a  witness 
W.  S.,  who  testified  as  follows:  (Here  set  forth  such  parts  of  the  testi- 
mony as  are  necessary  to  present  the  questions  of  law  raised  by  the 
exceptions  and  assignments  of  error.  The  testimony  should  be  set  forth 
in  narrative  form,  unless  the  trial  court  determines  it  necessary  to  a  full 
understanding  of  the  questions  of  law  that  it  be  set  out,  in  whole  or  in 

62  Jud.  Act,  ch.   18,   §  63 ;    Comp.  63  MeEae    v.    Garth    Lumber    Co., 

Laws  1915,   §12635;    Gemberling  v.  102    Mich.    488;    Finley   v.   Widner, 

Lazarus,   100   Mich.   324;    McRae   v.  116  Mich,  679;  Griffin  v.  McKnight, 

Garth  Lumber  Co.,  102   Mich.  488;  116    Mich.    468;     McEae    v.    Garth 

Brassel  v.  Minneapolis,  etc.,  R.  Co.,  Lumber  Co.,  102  Mich.  488;  Pearl  v. 

101  Mich.  7;  Knop  v.  National  Fire  Benton   Tp.,    136   Mich.   697;    In   re 

Ins.  Co.,   101   Mich.  359;   People  v.  Meeker's    Estate,    169    Mich.    303; 

Tice,  115  Mich.  219;  Finley  v.  Wid-  Stevenson  v.  Detroit,  etc.,  R.  Co.,  118 

ner,  116  Mich.  679;   Feige  v.  Burt,  Mich.  651;  Wilbur  v.  Michigan  Cent. 

124  Mich.  565;  Dyer  v.  People's  Ice  E.  Co.,  145  Mich.  344;  In  re  Keene's 

Co.,  188  Mich.  203.  Estate,    189    Mich.    98;    Gordon    v. 

Exception  to  the  order  denying  a  Drake,   193   Mich.   64;    Love  v.   De- 

new  trial  must  be  in  a  bill  of  excep-  troit,  etc.,  E.  Co.,  170  Mich.  1;  Ben- 

tions,  and  it  is  not  sufficient  that  the  nett    v.     Denton,     194     Mich.    610; 

exception  appears  in  the  record.     In  Mahder    v.    Wax,    192    Mich.    479; 

re  Keene's  Estate,  189  Mich.  98.  Clark    v.    Ona way- Alpena    Tel.    Co., 

In  a  late  case  affidavits  for  a  new  196    Mich.    168;    Hampton    v.    Van 

trial,  although  not  made  a  part  of  Nest 's  Estate,  196  Mich.  404. 

the  bill  of  exceptions,  were  consid-  64  Bennett    v.    Denton,    194    Mich, 

ercd  where  extracts   tlierefrom  were  610. 

printed  in  the  record.     Hampton  v.  66  Clark    v.    Onaway-Aliiena     Tel. 

Van  Nest's  Estate,  196  Mich.  404.  Co.,  196  Midi.  168,  182. 


216  Bill  of  Exceptions  §  7 

part,  by  question  and  answer;  in  which  case,  the  trial  court  must  so 
certify  in  writing.  Show,  also,  the  objections  taken,  the  ground  thereof 
and  the  decision  of  the  court  thereon.) 

Thereupon  the  plaintiff  rested  his  case,  and  the  said  defendant,  to 
maintain  the  isswe  on  his  part,  called  K.  M.  as  a  witness,  who  testified 
as  follows:  (Here  set  forth  such  parts  of  the  testimony  as  are  neces- 
sary, as  above  explained,  with  the  objections  taken,  the  grounds  thereof 
and  the  decision  of  the  court  thereon.) 

Thereupon  the  defendant  rested  his  case,  and  the  plaintiff  called  W.  R. 
as  a  witness,  who  testified  as  follows:  (Here  set  forth  such  parts  of  the 
testimony  as  are  necessary,  as  above  explained,  with  the  objections  taken 
thereon,  the  grounds  thereof  and  the  decision  of  the  court  thereon.) 

Thereupon  both  parties  rested. 

The  plaintiff  then  requested  the  court  to  instruct  the  jury  as  follows: 
1.  (Insert  the  request  as  refused.)  Which  said  request  the  court  then 
and  there  refused  to  give. 

And  thereupon  the  court  charged  the  jury  as  follows:  (Set  forth  the 
charge.  It  is  not  necessary  to  set  forth  any  exception  or  exceptions  to 
the  charge,  as  error  may  be  assigned  upon  the  charge  the  same  as  if 
exception  had  been  made  to  the  charge.) 

And  the  said  jury  thereupon  retired  to  consider  their  verdict,  and,  after 
being  absent  for  a  time,  returned  into  court  and  rendered  verdict  for  the 
plaintiff  and  against  the  defendant.     (State  the  substance  of  the  verdict.) 

And  thereupon  the  said  defendant  moved  the  court  to  set  aside  the 
said  verdict  and  grant  a  new  trial,  for  the  following  reasons:  (Insert 
the  reasons;)  but  the  court  refused  to  grant  said  new  trial,  giving  for 
such  refusal  the  following  reasons:  (Insert  the  reasons.)  To  which 
refusal  to  grant  said  new  trial,  the  said  defendant  duly  excepted. 

And  thereupon  the  court  entered  judgment  on  said  verdict.  (State  the 
substance  of  the  judgment.) 

And  because  the  foregoing  matters  and  things  do  not  appear  of  record 
in  said  cause,  I,  the  circuit  judge  aforesaid,  in  pursuance  of  the  statute 
and  rules  in  such  case  made  and  provided,  have  settled  this  bill  of  excep- 
tions, and  do  hereby  certify  that  I  have  determined  it  necessary  to  a  full 
understanding  of  the  questions  of  law  that  the  testimony  be  set  out  by 
questions  and  answers  to  the  extent  to  which  the  same  has  been  done  in 
this  bill,  and  that  the  assignments  of  error  hereto  annexed  accompanied 
this  bill  at  the  time  of  its  settlement. 

Dated,  etc. 

J.  S. 
Circuit  Judge. 

§  8.  Practice  in  settling Assignments  of  error. 

A  party  desiring  the  settlement  of  a  bill  of  exceptions 
should  prepare  a  proposed  bill  with  the  requisites  of 
construction  which  have  been  explained.    A  copy  of  the 


I  6  Bill  of  Exceptions  217 

proposed  bill  of  exceptions,  together  with  a  notice  when 
and  where  the  same  will  be  presented  for  settlement, 
must  be  served  on  the  opposite  party  at  least  four  days 
before  the  time  for  such  settlement. ^^ 

There  must  accompany  every  bill  of  exceptions  at  the 
time  of  its  service  and  at  the  time  of  its  settlement  a  de- 
tailed assignment  of  all  the  alleged  errors  upon  which 
the  appellant  proposes  to  rely.  No  bill  of  exceptions  can 
regularly  be  signed  unless  accompanied  by  such  assign- 
ment of  errors,  and  no  error  will  be  considered  by  the 
supreme  court  which  is  not  a  part  of  such  assignment.^'' 

If  the  appellant  attaches  to  the  bill  of  exceptions,  but 
separate  from  the  bill,  copies  or  a  fair  abstract  of  each 
material  pleading  and  document,  order,  verdict  or  judg- 
ment filed  or  recorded  in  the  case,  all  arranged  in  chron- 
ological order,  those  made  or  filed  before  the  judgment 
appearing  before  the  statement  relating  to  the  testimony, 
and  those  made  or  entered  after  the  trial  appearing  after 
the  statements  made  of  the  testimony,  such  copies  or 
abstract  may  be  settled  and  certified  by  the  judge  with 
the  bill  of  exceptions,  and,  with  the  bill  of  exceptions, 
will  be  the  record  of  the  case  for  the  supreme  court,  so 
that  the  usual  transcript  of  the  record  in  the  trial  court 
may  be  dispensed  with,  unless  the  supreme  court,  by 
order,  should  require  further  copies  or  abstracts  of 
pleadings  or  proceedings  or  the  originals  to  be  returned 
to  it.«8 

Amendments  to  the  proposed  bill  of  exceptions  may  be 
proposed  in  writing  by  the  opposite  party,  and  all  con- 
troversies respecting  the  same  must  be  detennined  by 

66  Cir.  Ct.  Rule   66,   §  9.  standing  tlie  verdict,  to  review  error 

67  Cir.  Ct.  Rule  66,  §§5,  6;  Pub.  against  the  party  in  which  favor 
Acts  1915,  No.  217;  Comp.  Laws  judgment  is  entered  is  provided  for 
1915,   §14568;   Roush  v.  Darmstaet-  by  Cir.  Ct.  Rule  66,  §6. 

ter,  113  Mich.  535.  Sufficiency  of,  see  Error,  Writ  of. 

Necessity  for  assignment  of  errors  68  Cir.  Ct.  Rule  68. 

where    judgment    entered,    notwith- 


218  Bill  of  Exceptions  §  8 

tlu'  trial  judg'e  according  to  the  facts,  at  such  time  and 
place  as  he  appoints.^®  The  proper  practice  is  to  take 
the  proposed  bill  of  exceptions  as  the  framework  of  the 
bill  to  be  settled,  and  modify  it  by  such  changes  and 
amendments  as  the  facts  warrant.'" 

It  is  the  duty  of  a  judge  in  settling  the  bill  of  excep- 
tions to  see  that  it  complies  with  the  requirements  of  a 
proper  bill  both  as  to  conciseness  and  other  matters  of 
form  and  also  as  to  accuracy  and  truth.  If  the  truth  of 
the  case  be  fairly  stated  in  the  proposed  bill,  it  is  the 
duty  of  the  judge  to  sign  it,  and  he  may  be  compelled  to 
do  so  by  the  court  to  which  any  writ  of  error  may  by  law 
be  brought,  upon  the  judgment  rendered  in  the  cause,  or 
which  has  authority  to  decide  upon  such  exceptions 
when  returned  by  him.''^^  Although  a  trial  judge  will  not 
be  compelled  to  sign  a  bill  of  exceptions  which  he  avers 
to  be  inaccurate,  he  should,  upon  the  basis  of  the  bill 
presented  and  the  amendments  offered,  sign  such  a  bill 
of  exceptions  as  he  deems  proper."^*  A  judge  will  not, 
however,  be  compelled  to  settle  a  bill  of  exceptions  after 
the  time  therefor  has  expired,  unless  there  is  a  stipula- 
tion between  the  parties  extending  the  time,''^^  which  the 
judge  has  no  right  to  disregard."^*  But  a  party  cannot 
be  deprived  of  his  right  to  have  a  bill  of  exceptions  set- 
tled and  signed,  even  though  the  time  allowed  therefor 
has   expired,  where   the   failure  to   settle   the  bill  was 

69Cir.  Ct.  Rule  66,  §9.  TlJud.   Act,  ch.   18,    §64;    Comp. 

70  People  V.  Wayne  Circuit  Judge,  Laws  1915,  §  12636. 

32  Mich.  259.  72  Pope    v.    Judge    of    Recorder's 

If,  in  settling  the  bill,  the  circuit  Court,  107  Mich.  25.     See  Corby  v. 

judge    omits    matter    which    counsel  Wayne  Circuit  Judge,  186  Mich.  533. 

for  appellant  l>elieves  to  be  material,  73  Lake    Shore,    etc.,    R.    Co.    v. 

a  motion  for  amendment   should  be  Branch  Circuit  Judge,  116  Mich.  399. 

made  in  the  lower  court,  and  if  such  74  People     v.     Kalamazoo     Circuit 

motion  is  denied  mandamus  may  be  Judge,    39    Mich.    123;    Hartley    v 

resorted  to.     Appellant  cannot  move  Miller,  164  Mich.  47. 
in  the  supreme  court  to  remand  the 
record   for   correction.      Mclntire  v. 
Carr,  168  Mich.  462. 


§  8  Bill  of  Exceptions  219 

caused  by  the  inaction  of  the  judge  or  other  fact  not  the 
fault  of  the  party,  and  where  such  party  has  presented 
his  bill  in  due  time.'''^ 

Although  the  parties  may  by  stipulation  extend  the 
time  for  settling  a  bill  of  exceptions,  they  cannot  by  that 
means  dispense  with  the  signing  of  the  bill  by  the  judge. 
The  signature  is  essentialJ^ 

Form  of  Notice  of  Settlement  of  Bill  of  Exceptions 

(Title  of  court  and  cause.) 
Sir:— 

You  will  please  to  take  notice  that  the  annexed  is  a  true  copy  of  the 
plaintiff's  proposed  bill  of  exceptions  and  the  plaintiff's  assignments   of 

error  in  the  above-entitled  cause,  and  that  on  the    day  of , 

A.  D ,  at  the  hour  of    o'clock  in  the    noon,  at  the 

court  house,  in  the   of ,  in  the  county  of   ,  and  state 

of  Michigan,  the  said  bill  of  exceptions  will  be  settled  by  the  Honorable 
J.  S.,  circuit  judge,  who  tried  said  cause,  at  which  time  and  place  you 
may  propose  such  amendments  to  said  bill  as  you  may  desire. 

Dated,  etc. 

J.  K., 
Attorney  for  Plaintiff. 

To   K.  L.,  Attorney  for  Defendant. 

Form  of  Assignments  of  Error  to  Accompany  Bill  of  Exceptions 

(Title  of  court  and  cause.) 

Comes  now  the  said  plaintiff  (or,  defendant,  as  the  case  may  be),  by 
J.  K.,  his  attorney,  and  says  that,  in  the  record  and  proceedings  in  this 
cause,  there  was  manifest  error  in  this,  that  is  to  say : 

1.  The  court  erred  in   (state  the  error). 

2.  The  court  erred  in   (state  the  error). 

Therefore,  and  for  the  errors  aforesaid,  the  said  plaintiff  (or,  defend- 
ant, as  the  case  may  be)  avers  that  the  judgment  rendered  in  said  cause 
ought  to  be  set  aside,  vacated  and  altogether  held  for  naught. 

J.  K., 

Attorney  for  Plaintiff  (or.  Defend- 
ant, as  the  case  may  be). 

76  People    V.    Van    Buien    Circuit  76  Lynch  v.  Craney,  95  Mich.  199. 

Judge,    41    Mich.    725;     People    v.  See    also    Wessels    v.    Beeman,    66 

Judge  of  Superior  Court,  41   Mich.  Mich.    343 ;    Niagara   Fire  Ins.    Co. 

726;   People  v.  Littlejohn,  11  Mich.  v.  De  Graff,  12  Mich.  10. 
60;   City  of  Detroit  v.  Blacke])y,  20 
Mich.  219. 


220  Bill  of  Exceptions  §  9 

§  9.  Settlement  where  trial  judge  dead  or  otherwise 

unavailable. 

Wlionover  a  judi>e  who  has  heard  a  cause  or  proceed- 
ing has  died,  resigned  or  vacated  the  office  before  the 
expiration  of  his  term,  or  is  unable  to  settle  a  bill  of  ex- 
ceptions by  reason  of  sickness,  absence  from  the  state  or 
for  any  other  cause  whatsoever  within  the  time  pre- 
scribed for  settling  it,  the  bill  of  exceptions  may  be  set- 
tled by  any  other  judge  of  the  same  circuit,  or,  if  there 
is  no  other  judge  or  in  case  of  his  absence  or  disability 
from  any  cause,  then  such  bill  of  exceptions  may  be  set- 
tled by  the  successor  of  the  trial  judge,  if  not  disquali- 
fied, or  by  any  circuit  judge.''^''  And  when  there  is  an 
official  stenographer  of  the  trial  court  who  has  taken  full 
minutes  of  the  testimony,  exceptions  and  charges  of  the 
judge  at  the  trial,  such  minutes  are  prima  facie  evidence 
of  the  testimony  given,  exceptions  taken  and  the  charge 
of  the  court,  and  other  proceedings  on  the  trial.''  The 
bill  of  exceptions  must  have  the  sanction  of  the  judge. 
It  is  not  sufficient  to  have  it  stipulated  by  the  parties.''* 

A  bill  of  exceptions  cannot  be  settled  by  a  trial  judge 
after  ho  has  retired  from  office,  and  authority  to  do  so 
cannot  be  conferred  upon  him  by  stipulation  between 
the  respective  parties.'"  Where  a  party  has  been  de- 
prived of  the  benefit  of  his  exceptions  by  causes  beyond 
his  control,  he  will  be  granted  a  new  trial. '^ 

§  10.  Furnishing  stenographer's  minutes. 

The  party  desiring  the  settlement  of  a  bill  of  excep- 
tions must  furnish  to  the  adverse  party  such  portion  of 

77  ar.  Ct.  Eule  66,  §  12 ;  Jud.  Act,  80  Hill  v.  Hill,  112  Mich.  633; 
ch.  18,  §64;  Comp.  Laws  1915,  Crittenden  v.  Sehermerhorn,  35 
§  12636.  Mich.  370.     But  see  Tefft  v.  Wind- 

78  Jud.   Act,   ch.   18,    §64;    Comp.  sor,  17  Mich.  425. 

Laws  1915,  §  12636;  Hill  v.  Hill,  112  81  Crittenden  v.   Sehermerhorn,  35 

Mich.  633.  Mich.  370;   People  v.  Judge  of  Su- 

79  Lynch  v.  Craney,  95  Mich.  199;  perior  Court,  41  Mich.  726;  Hill  v. 
Hill  V.  Hill,  112  Mich.  633.  Hill,  112  Mich.  633. 


§  11  Bill  op  Exceptions  221 

the  stenographer's  minutes  as  has  been  procured,  to- 
gether with  the  original  copies  of  such  exhibits,  papers, 
writings  or  documents  as  he  incorporates  in  the  pro- 
posed bill,  for  inspection  and  use  by  such  adverse  party 
in  the  preparation  of  amendments  to  the  proposed  bill  of 
exceptions,  and  may  also  be  required  to  furnish  a  copy 
of  such  further  portions  of  the  stenographer's  minutes 
as  are  deemed  necessary  by  the  court  to  a  settlement  of 
the  bill  of  exceptions. ^^  But  the  parties  or  their  attor- 
neys may  agree  upon  a  statement  of  facts  without  pro- 
curing the  stenographer's  minutes  of  the  testimony 
taken  at  the  trial  and,  if  satisfactory  to  the  trial  judge 
or  other  judge  with  authority  in  the  premises,  such  state- 
ment of  facts  may  be  signed  and  certified  and  will  then 
stand  as  the  bill  of  exceptions  in  the  cause. ^^ 

§  11.  Disposition  of  biU  when  settled. 

The  bill  of  exceptions  must  be  signed  by  the  trial 
judge" and  delivered  to  the  proposed  appellant,  who  must 
file  it  and  the  assignments  of  error  with  the  clerk  of  the 
court  within  ten  days  thereafter,  or,  in  default  thereof, 
will  be  deemed  to  have  waived  the  exceptions,  unless 
further  time  be  allowed  therefor  by  the  trial  judge  on 
special  motion  for  cause  shown. ^*  Papers  not  incor- 
porated in  a  bill  of  exceptions  as  signed  by  the  judge  do 
not  constitute  a  part  of  it,  unless  it  appears  by  marks, 
letters,  numbers  or  other  means  of  identification  con- 

82  Cir.   Ct.   Rule  66,   §  3.  Mich.  579,  which  involved  a  case  on 

This    rule    of    court    requires    the  appeal  but  is  governed  by  the  same 

furnishing     of     the     stenographer's  rules  as  apply  to  bill  of  exceptions. 

minutes    to   the   opposing   party   al-  83  Cir.  Ct.  Rule  66,  §10.     See  also 

though  the  bill  proposed  contains  all  ^Vhite  Pine  Lumber  Co.  v.  Manufac- 

the    testimony,    since    the    opposing  turer 's  Lumber  Co.,  191   Mich.  390, 

party   has   the   right   to   make   com-  397. 

parison  of  the  bill  presented  and  the  84  Cir.    Ct.    Rule    66,    Sll;    Jud. 

testimony   to   verify   the   claim   that  Act,  ch.  18,  §66;   Comp.  Laws  1915, 

it    contains    all    of    the    testimony.  §  12638. 

Marsh   v.   Kent   Circuit   Judge,   200 


222  Bill  of  Exceptions  §  11 

tained  in  the  bill  that  such  papers  were  made  a  part  of 
it  by  the  judge  who  settled  it,  so  as  to  leave  no  doubt  on 
the  part  of  the  appellate  court  that  they  were  made  a 
part  of  the  record  to  be  examined." 

The  bill  of  exceptions,  when  so  filed  in  the  office  of  the 
clerk,  becomes  a  part  of  the  record  in  the  cause. 

§  12.  Stay  of  proceedings  pending  issuance  of  writ  of 
error. 

Within  the  limit  of  twenty  days  after  the  entry  of 
judgment,  a  stay  of  execution  is  discretionary  Avith  the 
court ;  '^  but  no  stay  of  proceedings  upon  any  verdict  or 
judgment  rendered  in  any  circuit  court  in  this  state  can 
be  granted  or  allowed  for  the  purpose  of  settling  a  bill 
of  exceptions  in  the  case  in  which  the  verdict  or  judg- 
ment was  rendered,  for  a  longer  period  than  twenty  days, 
unless  the  party  applying  for  the  stay,  if  judgment  has 
been  rendered  against  him,  executes  to  the  adverse  party 
a  bond  with  sufficient  sureties,  in  such  sum  as  the  circuit 
judge  before  whom  the  cause  was  tried  shall  designate, 
conditioned  to  pay  the  judgment  if  it  be  not  set  aside  or 
reversed,  and  that,  if  a  writ  of  error  is  issued  in  the 
cause,  the  appellant  will  prosecute  his  writ  to  effect  and 
pay  and  satisfy  such  judgment  as  shall  be  rendered 
against  him  thereon.  Notice  of  the  time  and  place  when 
such  bond  will  be  presented  to  the  circuit  judge  for  ap- 
proval must  be  served  upon  the  adverse  party  at  least 
four  days  before  it  can  be  approved;"  but,  in  case  the 
party  applying  for  a  stay  of  proceedings  is  unable  to 
give  a  bond  by  reason  of  poverty,  the  judge  may,  upon 
due  proof  of  inability  for  such  reason,  grant  a  stay  with- 
out requiring  a  bond  for  siu-h  rcjisoiiahlo  timo  as  he  de- 

M  Wager  v.  Peak,  22  Mich.  368.  where  judgment   is  against  the  de- 

•6  Cir.  Ct.  Rule  66,  §  1.  fendant  in  summary  proceedings  to 

87  Jud.   Act,   ch.   22,   §  23 ;    Comp.  recover   the   possession   of   land,   see 

Laws  1915,  §12812.  Jud.  Act,  ch.  22.  §26;   Comp.  Laws 

As  to  the  form  of  the  stay  bond  191.5,    §1281.5. 


§  1  Bill  of  Particulars  223 

termines.^^     The  bond  should  be  filed  with  the  clerk  of 
the  court  in  which  the  judgment  was  rendered.®* 

When  such  a  stay  bond  as  described  has  been  filed,  no 
further  or  other  bond  will  be  required  to  stay  and  super- 
sede execution  upon  any  writ  of  error  issued  out  of  the 
supreme  court  by  or  on  behalf  of  the  party  filing  the 
bond.*" 

§  13.  Conclusiveness  of  bill  as  to  its  accuracy. 

The  accuracy  of  a  bill  of  exceptions  is  to  be  deter- 
mined by  the  trial  judge,  and  his  certificate  is  ordinarily 
conclusive.*^ 

BILL  OF  PARTICULARS 

§    1.  Definition. 

§    2.  Object. 

§    3.  In  what  cases  may  be  required. 

§    4.  Discretion  of  court. 

§    5.  Waiver   of   right   to    bUl. 

§    6.  Time  for  service  of  bill  and  effect  on  time  to  plead. 

§    7.  Filing  bill. 

§    8.  Sufficiency   of   bill. 

§    9.  Procedure  where  bill  not  furnished  or  where  insufficient. 

§  10.  Objections  at  the  trial. 

§  11.  Amendment. 

§  12.  Effect  and  nature  of. 

§  13.  As  restricting  or  enlarging  proof. 

§  1.  Definition. 

A  bill  of  particulars  is,  as  the  name  implies,  a  written 
statement  specifying  the  items  claimed  by  a  party  as 
constituting  the  cause  of  action  or  matter  of  defense 
which  his  pleading  alleges  in  a  more  comprehensive  way. 

88Jud.   Act,  ch.   22,    §24;    Comp.  issued  and  a  levy  made  thereunder, 

Laws  1915,  §12813.  see      Peterson      v.     Wayne     Circuit 

89Jiul.    Act,    eh.    22,    §25;    Comp.  Judge,   108   Mich.   608. 

Laws  1915,  §  12814.  91  White  Pine  Lumber  Co.  v.  Man- 

90Jud.    Act,  ch.    22,    §26;    Comp.  ufacturer's   Lumber   Co.,    191    Mich. 

Laws   1915,   §12815.  390,    398,    where    stenographer    had 

As  to  the  effect  of  a  stay  of  pro-  died  before  furnishing  transcript. 
eeedings  after  an  execution  has  been 


224  Bill  or  Particulars  |  1 

It  is  a  device  which  came  into  use  soon  after  the  com- 
mon counts  were  introduced  in  the  practice  of  EngLnnd, 
to  counteract  the  disadvantages  incident  to  so  indefinite 
and  general  an  exposition  of  the  plaintiff's  cause  of 
action. 

§2.  Object. 

The  object  of  the  practice  relative  to  bills  of  particu- 
lars is  to  obviate  the  uncertainty  of  general  pleading. 
The  intent  is  to  secure  such  infonnation  as  will  enable 
the  parties  to  make  intelligent  preparation  for  trial  and 
to  enter  upon  the  investigation  before  the  court  or  the 
jury  with  an  understanding  as  to  what  is  really  in  con- 
troversy.^ The  office  of  a  bill  of  particulars  is  to  inform 
the  opposite  party  of  the  cause  or  causes  of  action  upon 
which  the  party  giving  it  intends  to  rely  at  the  trial,  but 
which  have  not  been  specifically  set  out  in  the  declara- 
tion or  in  the  notice  accompanying  the  general  issue,^ 
and  to  enable  him  to  avoid  being  surprised  at  the  trial 
by  the  bringing  forward  of  unexpected  claims.^  If  it 
accomplishes  this  purpose,  it  is  sufficient.* 

§  3.  In  what  cases  may  be  required. 

From  what  has  been  said  of  the  function  of  a  bill  of 
])articulars,  it  is  obvious  that  the  opposite  party  is  en- 
titled to  a  bill  of  particulars  only  when  the  pleading  is 
more  or  less  general.  Where  the  declaration  alleges  the 
cause  of  action  specially  and  with  reasonable  certainty, 
there  can  be  no  difficulty  on  the  part  of  the  defendant  in 
knowing  what  to  meet  in  the  proofs,  and  the  defendant 
is  amply  protected  by  the  exclusion  of  evidence  at  vari- 
ance with  the  allegations. 

1  Cifotte  V.  Wayne  County,  44  3  Mason  v.  Seio  Fractional  School 
Mich.  173.  Dist.  No.  1,  34  Mich.  228. 

2  Davis  V.  Freeman,  10  Mich.  188;  4  Wright  v.  Dickinson,  67  Mich. 
Hamilton  v.  Frothingham,  71  Mich.  580. 

616. 


§  3  Bill  of  Particulars  225 

In  actions  ex  contractu,  a  bill  is  often  required  where 
a  general  form  of  declaring  is  provided  for  by  statute.* 
However,  particulars  of  unliquidated  damages  cannot 
be  required.® 

In  actions  ex  delicto,  it  is  not  usual  to  ask  for  a  bill,' 
and  in  a  case  decided  in  1914,  it  is  said  that  "being  an 
action  in  tort,  no  bill  can  be  demanded  as  of  right."* 
Thus,  in  an  action  on  the  case,  if  no  injury  is  definitely 
charged,  the  declaration  is  bad;  but,  if  it  contains  a  suffi- 
ciently definite  showing  to  give  a  cause  of  action,  so  that 
no  motion  to  dismiss  would  prevail,  the  defendant  can 
be  saved  from  surprise  by  confining  the  recovery  to  the 
causes  sufficiently  described,  and  he  is  not,  therefore,  en- 
titled to  a  bill  of  particulars.® 

So,  where,  in  an  action  for  slander,  the  affidavit  upon 
which  the  defendant  was  held  to  bail  set  forth  the  par- 
ticulars with  abundant  fullness,  the  court  could  not  re- 
quire 'the  plaintiff  to  file  a  bill  of  particulars.^"  How- 
ever, a  bill  may  be  ordered  in  an  action  based  on  a  tort." 
Thus,  in  an  action  for  criminal  conversation  it  is  proper 
to  require  a  bill  to  specify  the  place  and  date  of  each 
alleged  act  of  intercourse.^^ 

It  has  been  held  in  other  states,  and  undoubtedly  it  is 
the  rule  in  this  state,^^  that  where  the  information  sought 
lies  peculiarly  within  the  knowledge  of  the  applicant  or 
for   aught   that   appears   the   applicant   is   as   well  ac- 

6  See  Davis  v.  Freeman,  10  Mich.  For  review  of  Michigan  cases  as 

188,  192.  to  bills  of  particulars  in  actions  for 

6  Van  Kranken  v.  Wayne  Circuit  tort,  see  State  v.   Hosmer    (Mich.), 
Judge,  85  Mich.  140.  104  N.  W.  637. 

7  State    v.    Hosmer    (Mich.),    104  10  Gibbs    v.    Judge    of    Superior 
N.  W.  637.  Court,  53  Mich.  496, 

8  Schnell  v.   Michigan  Bonding  &  11  Anti-Kalsomine     Co.     v.     Kent 
Surety  Co.,  183  Mich.  340,  345,  cit-  Circuit  Judge,  119  Mich.  434. 

iiig  Kehrig  v.  Peters,  41  Mich.  475.  12  Gary    v.    Eaton    Circuit    Judge, 

9  Shaddock   v.   Alpine   Plank-Road       132  Mich.  105. 

Co.,  79  Mich.  7;  People  v.  Marquette  13  Strong  v.  Hollon,  39  Mich.  411. 

Circuit  Judge,  39  Mich.  437;  Kehrig 
v.  Peters,  41  Mich.  475. 
1  Abbott— 15 


226  Bill  of  Particulars  §  3 

quainted  with  the  nature  of  the  particulars  of  the  claim 
as  is  the  pleader,  a  bill  will  not  generally  be  required. 

The  fact  that  a  case  has  been  tried  twice  without  a 
bill  of  particulars  of  the  damages  sought  to  be  recovered 
under  a  special  declaration  will  not  prevent  the  ordering 
of  one  for  the  third  trial  as  a  means  of  facilitating  such 
trial  by  confining  the  range  of  proof  within  defined  limits 
and  preventing  plaintiff  from  bringing  forward  new  items 
to  the  surprise  of  the  defendant.^*  But  a  bill  pf  par- 
ticulars of  what  is  to  be  established  against  a  garnishee 
is  not  a  matter  of  right,  especially  w^here  the  garnishee 
has  made  disclosure. ^^ 

Mandamus  lies  to  correct  the  action  of  the  trial  court 
in  ordering  a  bill  of  particulars.^^ 

By  statute,  "to  entitle  a  defendant  to  a  set-off  or 
recoupment,  he  must  annex  a  notice  thereof  to  his  plea 
of  the  general  issue,  with  a  bill  of  particulars  of  such 
set-off  or  recoupment  in  all  cases  where  such  bill  might 
be  demanded. "  " 

§  4.  Discretion  of  court. 

It  has  been  said  that  "a  defendant  in  a  proper  case  is 
entitled  to  a  bill  of  particulars  as  a  matter  of  right."  " 
In  actions  of  tort,  however,  it  is  held  that  the  granting 
of  the  motion  rests  "in  the  sound  discretion  of  the  trial 
court,  to  be  required  or  refused,  according  as  justice  and 
fair  dealing  require."^®  And  it  would  seem  the  better 
rule  that  even  in  cases  of  contract  the  requiring  a  bill 
should  rest  in  the  sound  discretion  of  the  court. 

14  Van    Vranken    v.    Gartner,    85  18  Dissenting    opinion    of    Justice 

Mich.  140.  McAlvay      in      State      v.      Hosmer 

16  Strong  V.  Hollon,  39  Mich.  411.  (Mich.),  104  N.  W.  637. 

16  Van    Vranken    v.    Gartner,    85  19  Gary   v.    Eaton    Circuit   Judge, 

Mich.    140;    Hamilton    v.    Peck,    84  132  Mich.  105,  reaffirmed  in  Schnell 

Mich.  393.  v.   Michigan  Bonding  &  Surety  Co., 

ITJud.    Act,    ch.    15,    §3;    Comp.  183  Mich.  340,  347,  and  see  State  v. 

Laws  1915,  §12470.     This  is  a  new  Hosmer  (Mich.),  104  N.  W.  637. 
provision. 


§  8  Bill  of  Particulars  227 

§  5.  Waiver  of  right  to  bill. 

A  defendant  who  has  properly  demanded  a  bill  of  par- 
ticulars does  not  waive  his  right  thereto  by  pleading  to 
the  declaration.  If  the  plaintiff  refuses  to  comply  with 
the  demand,  and  insists  upon  the  right  to  a  trial  without 
furnishing  a  bill  of  particulars,  the  court  will  sustain  an 
objection  by  the  defendant  to  the  admission  of  the  plain- 
tiff's evidence. ^° 

§  6.  Time  for  service  of  bill  and  effect  on  time  to  plead. 

In  all  cases  in  which  the  defendant  is  entitled  to  de- 
mand a  bill  of  particulars,  the  plaintiff  should  serve  and 
file  a  copy  of  the  bill,  unless  it  has  been  already  fur- 
nished, as  soon  as  practicable  after  being  served  with  a 
notice  of  such  demand.  If  such  demand  be  made  before 
the  expiration  of  the  time  for  filing  plea,  the  defendant 
will  have  the  same  time  to  plead  after  receiving  the  bill 
of  particulars  to  which  he  was  entitled  at  the  time  of 
serving  such  notice.^^ 

§  7.  Filing  biU. 

The  statute  which  required  the  filing  of  the  bill  was 
repealed  by  the  Judicature  Act  but  the  rule  of  court  re- 
quires filing  by  the  plaintiff.^^ 

§  8.  Sufficiency  of  bill. 

The  bill  must  be  sufficiently  specific  and  certain  to 
fairly  apprise  the  opposite  party  of  the  claim  so  that 
there  can  be  no  surprise.''^  However,  it  need  not  con- 
tain all  the  essentials  of  a  special  declaration.  It  is 
neither  given  nor  required  for  the  purpose  of  disclosing 
to  an  adverse  party  the  evidence  relied  on  to  substantiate 

20  Peterson    v.    T\lden,    44    Mich.  22  Cir.  Ct.  Rule  30,  «  1. 

168.     See  also  Peninsular  Stove  Co.  23  Wright   v.   Dickinson,   67   Mich. 

V.  Osmun,  7.3  Mich.  570,  as  to  effect  SS.S ;   Nugent  v.  Teachout,  67  Mich, 

of  notice  of  issue,  such  notices  now  571 ;    Cicotte   v.   Wayne   Countj,   59 

being  abolished.  Mich.  509. 

21  Cir.  Ct.  Rule  30,  §  1. 


228  Bill  OF  Particulars  §8 

It,  nor  is  it  the  office  of  such  bill  to  furnish  to  the  defend- 
ant facts  whereon  to  found  an  affirmative  defense  in 
his  behalf.  It  need  not  state  the  grounds  on  which  the 
plaintiff  claims,  but  only  the  items  and  particulars.  It 
should,  however,  be  sufficiently  specific  and  certain  to 
apprise  the  opposite  party  of  what  the  demand  is,  when 
the  items  accrued,  how  they  arose  and  the  amount 
claimed.  In  mentioning  dates,  it  is  not  necessary  that 
the  exact  date  be  given,  but  it  may  be  stated  as  on  or 
about  a  certain  day,  and  in  that  case  the  party  giving  it 
is  not  restricted  to  proof  of  that  particular  day.  The 
question  to  be  determined  in  such  case  is  whether  the 
proof  is  so  variant  from  the  date  alleged  as  to  mislead 
the  opposite  party.^* 

A  bill  of  particulars  which  informs  the  defendant  of 
the  dates  and  amounts  of  several  sales  and  deliveries  of 
merchandise  is  all  that  can  usually  be  necessary  to  in- 
form him  of  what  he  is  expected  to  meet.^*  The  bill  need 
not  show  credit  items,  in  an  action  on  an  account,  espe- 
cially where  the  demand  for  the  bill  does  not  include  a 
demand  for  particulars  of  defendant's  set-off  or  pay- 
ment.^^  A  bill  which  claimed  a  fixed  amount  as  a  bal- 
ance due  "for  sei^ices  as  bookkeeper"  between  certain 
dates  has  been  held  sufficient.^' 

Form  of  Demand  for  Bill  of  Particulars  of  Plaintiff's  Demand 
(Title  of  court  and  cause.) 
Sir:— 

You   will   please  to    take   notice   that  the  said  plaintiff   is   required   to 
furnish    to    the    attorney   for    the   above-named   defendant   an   account   in 
writing  of  the  particulars  of  hi»  demand  for  which  this  action  is  brought. 
Dated,  etc. 

Yours,  etc., 

K.  L., 
To  J.  K.,  Plaintiff's  Attorney.  Defendant's   Attorney. 

24  Hamilton    v.    Peck,    84    Mich.  26  Cairbre  v.  McQuillen,  162  Mich. 

;;93;    Sogge   v.  Schwartz,   116  Mich.       679. 
635.  27  Strut/  V.  Brown,  110  Mich.  687. 

26  Frechling  v.  Kctchum,  39  Mich. 
299.     See   Cir.   Ct.  Rule  30. 


§  8  ,  Bill  of  Particulars  229 

Form  of  Bill  of  Particulars  of  Plaintiff's  Demand 
(Title  of  court  and  cause.) 
Sir:— 

You  will  please  to  take  notice  that  the  following  is  a  bill  of  particu- 
lars of  the  plaintiff's  demand  in  this  ease,  for  the  recovery  of  which  he 
has  brought  this  suit:      (Here  state  the  items  as  particularly  as  possible, 
with  dates  and  amounts  of  each.) 
Dated,  etc. 

Yours,  etc.,  J.  K., 

Plaintiff's  Attorney. 
To  K.  L.,  Defendant's  Attorney. 

Form  of  Notice  of  Retainer  and  Demand  for  a  Bill  of  Particulars 

(Title  of  court  and  cause.) 
Sir:— 

You  will  please  to  take  notice  that  I  am  retained  for  the  above-named 
defendant   in   this   cause,   and  that   the   said   plaintiff   is   required   to   fur- 
nish to  me,  the  attorney  for  the   said  defendant,  an  account  in  writing 
of  the  particulars  of  the  said  plaintiff's  demand  in  this  cause. 
Dated,  etc. 

Yours,  etc.,  K.  L., 

Attorney  for   Defendant. 
Business  address: 

,  Mich. 

To   J.   K.,   Attorney   for  Plaintiff. 

Form  of  Demand  for  Bill  of  Particulars  of  Defendant's  Set-off 
(Title  of  court  and  cause.) 
Sir:— 

Please   take   notice   that  the   said    defendant  is   required  to   furnish   to 
the  attorney  for  the  above-named  plaintiff  an  account  in  writing  of  the 
particulars  of  his  set-off,  of   which  notice  has  been  given  by  the  said  de- 
fendant in  this  cause. 
Dated,  etc. 

Yours,  etc.,  J.  K., 

Plaintiff's  Attorney. 
To  K.  L.,  Defendant's  Attorney. 

Form  of  Bill  of  Particulars  of  Defendant's  Set-off 
(Title  of  court  and  cause.) 
Sir:— 

You  will  please  take  notice  that  the  following  is  a  bill  of  particulars 
of  the   defendant's   set-off  in   this  cause:      (Here  state  the   items   as   par- 
ticularly as  possible,   with  dates  and  amounts  of  each.) 
Dated,  etc. 

Yours,  etc.,  J.  K., 

To  K.  L.,  Defendant's  Attorney.  Pl;iiiitiff'a   .Mtomoy. 


230  Bill  of  Particulars  §  9 

§  9.  Procedure  where  bill  not  furnished  or  where  insuffi- 
cient. 
If  the  plaintiff  unreasonably  neglects  to  furnish  a  bill 
of  particulars,  or  if  tlie  bill  of  particulars  delivered  be 
insufficient,  the  court  may,  in  its  discretion,  either  non- 
suit the  plaintiff,  allow  further  time  to  furnish  it  or  re- 
quire a  more  particular  bill  to  be  delivered.^^  If  the  bill 
of  particulars  of  set-off  furnished  by  the  defendant  is  in- 
sufficient, the  defendant  will,  on  motion,  be  required  to 
furnish  a  more  specific  bill  of  particulars.^^  The  action 
of  the  court  in  abuse  of  its  discretionary  authority  in 
this  respect  may  be  corrected  by  mandamus.^" 

§  10.  Objections  at  the  trial. 

If  the  bill  is  not  sufficiently  full,  the  adverse  party 
should  not,  as  a  general  rule,  wait  until  the  trial  and 
then  object  to  the  admission  of  evidence  on  that  ac- 
count, but  should  demand  a  more  specific  bill,  and,  if 
that  demand  is  not  complied  with,  should  move  the 
court  before  trial  to  require  a  more  specific  bill.^^ 

However,  where  the  paper  served  in  response  to  a 
demand  for  a  bill  of  particulars  gives  no  additional  in- 
formation and  possesses  none  of  the  qualities  of  a 
proper  bill  of  particulars,  an  objection  to  the  introduc- 
tion of  testimony  at  the  trial  is  well  taken.  An  objec- 
tion at  the  trial  comes  too  late  only  when  there  has  been 
some  bona  fide  effort  to  comply  with  the  demand.'^ 

28  Cir.  Ct.  Rule  30,  §  2.  That  rlis-  30  Van  Vranken  v.  Gartner,  85 
cretion  is  limited  to  one  of  three  Mich.  140;  Hamilton  v.  Peck,  84 
things  mentioned,  see  opinion  of  Jus-       Mich.  393. 

tice    McAlvay    in    State    v.    Hosnior  31  Tanner  v.  Page,  106  Mich.  155; 

(Mich.),    104   N.   W.    637;    nonsuit,  Buckeye  Tp.  v.  Clark,  90  Mich.  432; 

see    Gibbs    v.    Judge    of    Superior  Strutz    v.    Brown,    110    Mich.    687; 

Court,  53  Mich.  496.  I'reehling  v.  Ketchum,  39  Mich.  299. 

29  Cir.  Ct.  Rule  30,  $  3,  Changing  32  Knop  v.  National  Fire  Ins.  Co., 
former    rule    which    also    permitted  101  Mich.  359. 

exclusion  of  evidence. 


§  11  Bill  of  Particulars  231 

§  11.  Amendment. 

A  bill  of  particulars,  whether  of  the  plaintiff's  de- 
mand or  of  the  defendant's  set-off,  may,  in  proper  cases, 
in  the  discretion  of  the  court,  be  amended,  either  be- 
fore the  trial  or  upon  the  trial.  If  an  amendment  be 
allowed  at  the  trial,  an  adjournment  or  continuance 
should  be  granted  in  case  the  adverse  party  claims  to 
be  surprised;  ^^  but  where  the  claim  of  surprise  is  clear- 
ly a  mere  pretense,  a  merely  formal  amendment  should 
be  allowed  without  costs  or  delay,  and  a  permission 
upon  the  terms  of  the  payment  of  the  costs  and  the 
continuance  of  the  cause  would  not  in  such  case  be  a 
reasonable  exercise  of  the  court's  discretion.^*  The 
allowance  of  an  amendment  of  a  bill  of  particulars  rests 
in  the  discretion  of  the  court.^^ 

Ordinarily  a  plaintiff  will  be  allowed  to  amend  his 
bill,  of  particulars  if  necessary  to  make  it  cover  his  de- 
mand ;^^  and  when  the  variance  between  the  evidence 
and  the  bill  is  merely  formal,  an  amendment  should  be 
permitted  unless  there  is  reason  to  believe  that  the  de- 
fendant will  be  prejudiced  thereby.^'''  However,  an 
amendment  must  not  introduce  a  new  cause  of  action, 
especially  where  barred  by  limitations.^^ 

The  trial  court  may  in  its  discretion  permit  a  bill 
of  particulars  to  be  amended  by  inserting  a  new  item 
or  a  date,  even  after  the  trial  has  commenced  and  a  wit- 
ness has  been  sworn,  and,  if  the  opposite  party  wishes 
time  to  investigate  the  items  or  claims  any  surprise  by 

33  Lester  v.  Thompson,  91  Mich.  37  Collins  v.  Beecher,  45  Mich.  436. 
245,248.  38Hapke   v.   Davidson,   180   Mich. 

34  Tate  V.  Hamilton,  81  Mich.  221.  138,    148,    holding    more   change    of 

35  Hai)ke  v.  Davidson,  180  Mich.  date  as  to  certain  items  for  services 
138,  148;  City  of  Battle  Creek  v.  did  not  introduce  a  new  cause  of  ac- 
Haak,  139  Mich.  514,  522.  tion;      Anderson     Carriage     Co.     v. 

36  Cummin    v.    Wilcox,    47    Mich.  Piings,  127  Mich.  543. 
501  ;   Feiertag  v.  Feiertag,  73  Mich. 

297. 


232  Bill  of  Particulars  §  11 

the  allowance  of  the  amendment,  so  that  he  is  not  pre- 
pared to  proceed  with  the  trial,  he  should  ask  for,  and 
be  granted,  a  continuance.^^  An  amendment  of  a  bill 
of  particulars  during  the  trial  by  increasing  the  amount 
of  a  specific  claim  of  the  defendant  may  be  allowed  in 
the  discretion  of  the  court,  in  the  exercise  of  which  the 
court  should  consider  whether  the  amendment  would 
be  in  furtherance  of  justice  and  would  take  the  adverse 
party  by  surprise." 

However,  on  the  third  trial  of  a  case,  it  was  held 
proper,  in  the  discretion  of  the  court,  to  refuse  an 
amendment  where  not  justified  by  anything  contained 
in  the  declaration  or  bill  of  particulars  and  where  it 
would  operate  as  a  surprise  to  the  defendant.*^ 

§  12.  Effect  and  nature  of. 

A  bill  of  ^particulars,  although  it  has  the  effect  of  a 
pleading  in  so  far  as  it  restricts  the  proof  to  the  items 
and  within  the  amounts  which  it  specifies,  is  not  con- 
sidered as  a  part  of  the  pleading.  The  service  of  a  bill 
of  particulars  has  never  been  regarded  as  being  an 
amendment  of  the  pleadings  or  as  changing  the  issue 
in  the  cause.  It  cannot  be  pleaded  to.  And,  as  a  bill 
of  particulars  forms  no  part  of  the  pleading,  but  is 
merely  explanatory  and  in  amplification  of  it,  it  neither 
adds  to  nor  detracts  from  the  sufficiency  of  a  declara- 
tion on  a  motion  to  dismiss  as  a  substitute  for  the  old 
demurrer.*^ 

However,  a  bill  of  particulars  by  which  it  appears  that 

39  Lester  v.  Thompson,  91  Mich.  gent  v.  Teachout,  67  Mich.  571 ; 
245.  Knop  v.  National  Fire  Ins.  Co.,  101 

40  Mead  v.  Glidden,  79  Mich.  209.         Mich.  359;   Wright  v.  Dickinson,  67 
41Bamlet  Realty  Co.  v.  Doff,  18:J       Mich.    580;    Bennett    v.    Smith,    40 

Mich.  694,  707.  Mich.     211;     Duplanty     v.     Stokes, 
42Cicotte    V.    Wayne    County,    44  103  Mich.  630;  Applebaum  v.  Cold- 
Mich.  173,  59  Mich.  509;  Weston  v.  man,  155  Mich.  369.     Compare  Hurd 
County  of  Luce,  102  Mich.  528;  Nu-  v.  Northern  Ace.  Co.,  153  Mich.  474. 


§  13  Bill  of  Particulars  233 

the  plaintiff  sues  as  assignee  of  a  cause  of  action  will 
render  unnecessary  the  averment  of  the  assignment  in 
the  declaration.** 

§  13.  As  restricting-  or  enlarg^g  proof. 

There  can  be  no  recovery  for  items  not  in  the  bill  of 
particulars,  nor  for  more  than  it  alleges.**  Thus,  an  item 
for  wages  will  not  admit  evidence  of  a  claim  for  money 
loaned;  *®  nor  can  a  recovery  for  money  had  and  received 
by  the  defendant  for  the  use  of  the  plaintiff  be  had  un- 
der a  bill  of  particulars  for  services  rendered  and  money 
loaned  to  the  defendant.*®  So,  under  an  item  for  money 
loaned,  it  is  inadmissible  to  show  a  loan  of  a  United 
States  bond.*''  And  where  suit  is  brought  for  the  value 
of  labor,  and  a  bill  of  particulars,  filed  under  a  notice 
of  set-off  and  recoupment,  gives  no  intimation  of  dam- 
ages for  a  breach  of  the  contract  of  hire,  evidence  of  such 
damages  is  inadmissible.*'  The  bill  cannot  enlarge  the 
scope  of  the  recoveiy.*^  The  objection  that  the  bill  of 
particulars  does  not  cover  the  evidence  is  one  that  must 
be  made  at  the  trial  or  it  will  be  considered  as  waived. 

However  plaintiff  may  testify,  in  an  action  on  an  ac- 
count, to  payments  he  claims  were  made  by  defendant, 
in  order  to  escape  the  statute  of  limitations,  although 
such  credits  are  not  shown  by  the  bill  of  particulars,  it 
not  being  necessary  to  show  them;  and  if  defendant  is 
surprised  he  may  apply  for  time  in  which  to  prepare  to 

43  Kelly  v.  Waters,  31  Mich.  404;  is  limited  to  items  of  work  done  and 
Snell  V.  Gregory,  37  Mich.  500.  meals  furnished,  with  prit'c  for  same. 

44  Bennett  v.  Smith,  40  Mich.  211.  Brooks  v.  Bellows,  179  Mich.  421. 
See    also    Duplanty    v.    Stokes,    103  45  Judd  v.  Burton,  51  Mich.  74. 
Mich.  630;    Gubbins  v.  Ashley,  146          46  Feiertag  v.   Feiertag,   73  Mich. 
Mich.    453;     Stoner    v.    Riggs,    128  297. 

Mich.      129;      Grady      v.      Sullivan,  47  Waterman     v.     Waterman,     34 

112   Mich.    458;    Wright   v.    Dickin-  Mich.  490. 

son,  67  Mich.  580.  48  Ritter  v.  Daniels,  47  Mit-h.  617. 

Prospective  ])rofits  are  not  recov  49  Ap|)lpbaum     v.     Goldman,     155 

cral)lc  where  the  bill   of  particulars  Mifh.  369. 


234 


Bill  of  Particulars 


13 


meet  the  unexpected  claim. ^°  And  as  the  object  of  this 
strictness  in  a  bill  of  particulars  is  that  defendant  may 
know  what  will  be  attempted  to  be  proved  against  him 
at  the  trial,  and  may  prepare  his  evidence  accordingly, 
a  mistake  in  a  particular  not  calculated  to  deceive  or 
mislead  him,  will  not  be  regarded  as  material.^^  A  con- 
tract set  out  verbatim  in  the  declaration  is  admissible 
in  evidence  although  not  mentioned  in  the  bill  of  par- 
ticulars.^^ 

BILLS  AND  NOTES 

Cross-Beferences:      Assumpsit;      Pleabing;      Parties;      Executions; 
Trover;   Lost  Instruments;   Limitation  op  Actions. 

In  this  state  the  Negotiable  Instruments  Law  governs 
promissory  notes,  checks,  bills  of  exchange,  drafts,  and 


50  Cairbre  v.  McQuillen,  162  Mich. 
679. 

61  Sogge  V.  Schwartz,  116  Mich. 
635. 

"The  defendant's  counsel  assigns 
error  upon  the  refusal  of  the  court 
to  instruct  the  jury  in  accordance 
with  the  following  request:  'That 
they  would  have  to  find  that  the 
moneys  were  loaned  at  the  times 
specified  in  the  bill  of  particulars, 
as  testified  to  by  plaintiff.'  The 
court  refused  to  give  this  request 
and  we  think  properly  so.  To  say 
that  because  plaintiff  s  testimony 
disclosed  a  variance  of  a  few  days 
from  the  date  named  in  the  bill  of 
particulars,  he  should  fail  in  his  ac- 
tion, would  be  laying  down  a  rule 
stricter  than  the  law  demands.  In 
1  Green's  Practice  512,  it  is  said: 
'But  as  the  object  of  this  strictness 
in  a  bill  of  particulars  is  that  the 
defendant  may  know  what  wnll  be 
attempted  to  be  proved  against  him 
at  the  trial  and  may  prepare  his 
evidence  accordingly,  a  mistake  in  a 
particular  not  calculated  to  deceive 


or  mislead  him  will  not  be  regarded 
as  material.'  In  Sogge  v.  Schwartz, 
116  Mich.  635,  an  error  was  made  in 
both  the  date  and  amount  named  in 
the  bill  of  particulars,  but  this  court 
held  that  inasmuch  as  the  defendant 
was  neither  surprised  nor  misled,  the 
variance  should  be  disregarded.  If 
there  were  any  variance  in  point  of 
time  between  the  dates  named  in 
the  bill  of  particulars  and  plaintiff's 
testimony,  counsel  for  defendant 
should  have  objected  to  its  admis- 
sion when  offered  or  subsequently 
moved  to  strike  it  out,  at  which  time 
plaintiff's  counsel  could  have  applied 
for,  and  secured,  an  amendment,  if 
the  variance  was  regarded  material 
by  the  court.  This  not  having  been 
done  and  there  being  no  claim  upon 
the  part  of  defendant's  counsel  that 
he  was  surprised  or  misled  on  ac- 
count of  the  variance,  we  think  the 
court  was  not  in  error  in  refusing 
to  give  the  request."  Bennett  v. 
Maurice,  162  Mich.  254. 

62  Davis  V.  Freeman,  10  Mich.  188. 


Bills  and  Notes  235 

other  negotiable  instruments.^  An  action  on  a  bill  or 
note  is  a  transitory  one  and  may  be  brought  in  any  state 
where  the  debtor  or  his  property  may  be  found.^  What 
defenses  may  be  introduced  under  a  particular  notice 
under  the  general  issue,^  is  governed  by  the  rules  gov- 
erning notices  in  general.*  The  execution  of  the  bill  or 
note  sued  on  is  admitted  unless  defendant  files  and  serves 
a  copy  of  an  affidavit  denying  the  execution,  and  the  rule 
of  court  is  specially  made  applicable  to  actions  against 
indorsers.^  If  a  copy  of  the  bill  or  note  sued  on  is  served 
with  the  declaration,  plaintiff  may  declare  on  the  money 
counts  alone. ^ 


state  Bar  Association  Form  of  Declaration  on  Note  by  Payee  Against 

Maker     ' 
(Title  of  court  and  cause.) 

The  plaintiff  says: 

l.^That    the    defendant    executed    his    promissory    note,    dated     , 

19..,   for    dollars,   payable   to  the   plaintiff    months   after 

date,  with  interest  at    per  centum  per  annum   from  date,  a  copy 

of  which  is  attached  hereto  and  marked   Exhibit  A. 

2.  That  the  defendant  has  not  paid  the  said  note  nor  the  interest  due 
thereon. 

3.  Wherefore,  etc. 

State  Bar  Association  Form  of  Declaration  on  Note  by  Indorsee  Against 

Indorser 

(Title  of  court  and  cause.) 

The  plaintiff   says: 

1.  That    one    C.    D.    executed    his   promissory   note    dated    ,    19.., 

for    dollars,  payable  to   one   E.  F.   or  order    months  after 

date,   with   interest  at    per   centum  per   annum   from   date,   which 

said  note  was  indorsed  by  the  said  E.  F.  to  the  defendant,  and  by  the 
defendant  to  the  plaintiff,  and  was  duly  presented  for  payment  and  was 

iPub.  Acts  1905,  No.  265.  Custard  v.   Hodges,   155  Mich.   361; 

2  Millar  v.  Hilton,  189  Mich.  635.  Citizens'  Sav.  Bank  v.   Globe  Brass 

8  Green    v.    Ostrander,    160    Mich.  Works,    155    Mich.    3;     First    Nat. 

662;   Smith  v.  McDonald,  139  Mich.  Bank  v.  Shaw,  149  Mich.  362.     See 

225.  also  Pleading. 

4  See  Pleading.  6  Jud.    Act,    ch.    14,    §9;    Comp. 

5  Cir.  Ct.  Rule  33;  Barnes  v.  Spon-  Laws  1915,   §  12461. 
cer   &   Barnes   Co.,   162    Mich.    509; 


236  Bills  and  Notes 

dishonored,  of  Tvhich  the  defendant  had  due  notice,  a  copy  of  which  note 
with  indorsements  is  attached  hereto  and  marked  Exhibit  A. 

2.  The  defendant  has  not  paid  the  said  note. 

3.  Wherefore,  etc. 

State  Bar  Association  Form  of  Declaration  on  a  Bill  of  Exchange 
( Title  of  court  and  cause.) 

The  plaintiff  says: 

1.  That  the   defendant  accepted  a  bill  of  exchange   of    dollars, 

dated    ,   19 .  . ,  drawn  by  the  plaintiff  upon  the  defendant,  payable 

to  the  plaintiff   months  after  date   (or,  on  demand,  or,  at  sight), 

a  copy  of  which  is  attached  hereto  and  marked  Exhibit  A. 

2.  That  the  defendant  has  not  paid  the  said  bill. 

3.  "Wherefore,  etc. 

BOARD  OF  SUPERVISORS 

See  Commencement  of  Actions;   Certiorari;   Executions. 

BODY  EXECUTIONS 

See  Executions. 

BONDS 

§  1.  Scope  of  article. 

§  2.  Defects  in,  amendments,  and  substitution  of  new  bonds. 

§  3.  "Who  may  sue  on  bonds  of  public  officers. 

§  4.  Effect  of  another  action  pending  or  another  judgment  on  .(^ame  bond. 

§  5.  Distribution  of  recovery  on  official  bonds. 

§  6.  Pleading,  verdict  and  judgment. 

§  7.  Limitation  of  time   to  sue   on   official  bonds. 

Cross-Eeferences:  Of  particular  officers,  see  Clerks  of  Court;  Sher- 
iffs; Circuit  Court  Commissioners,  etc.  Of  guardian  ad  litem  or  next 
friend,  see  Guardian  ad  Litem,  etc.  In  particular  proceedings,  see  At- 
tachment; Garnishment;  Execution;  Eeplevin;  Fraudulent  Debtors; 
Bail;  Jail  Liberties;  Certiorari;  Justices  of  the  Peace;  Probate 
Courts;  Contempt;  Bill  of  Exceptions;  Error,  Writ  of.  See  also  Se- 
curity for  Costs;  Limitation  of  Actions  (time  to  sue  on  bonds). 

§  1.  Scope  of  article. 

Particular  bonds  and  bonds  in  particular  proceedings 
are  treated  of  in  connection  with  such  proceedings  or  the 
particular  matter  involved.  There  are,  however,  certain 
statutes  and  certain  general  rules  applicable  to  bonds 


§  2  Bonds  237 

generally  or  to  certain  classes  of  bonds  which  will  be 
noticed  herein.  For  instance,  chapter  21  of  the  Judica- 
ture Act  is  entitled  * '  Suits  on  Official  and  Other  Bonds. ' ' 
The  indorsement  of  executions  so  as  to  require  a  levy 
on  the  property  of  a  public  officer  before  a  levy  on  prop- 
erty of  his  sureties  is  noted  in  the  article  on  Executions. 

§2.  Defects  in  amendments,  and  substitution  of  new 
bonds. 

The  Judicature  Act  provides  that  no  appeal  shall  be 
dismissed  on  account  of  any  informality  or  imperfection 
in  the  bond  for  the  taking  of  such  appeal  if  plaintiff 
shall  either  by  amendment  or  by  furnishing  a  new  bond 
supply  the  deficiency  or  defect.^ 

It  also  provides  that  ''Whenever  a  bond  is  or  shall 
be  required  by  law  to  be  given  by  any  person,  in  order 
to  entitle  him  to  any  right  or  privilege  conferred  by  law, 
or  to  commence  any  proceeding,  it  shall  not  be  necessary 
for  such  bond  to  conform  in  all  respects  to  the  form 
thereof  prescribed  by  any  statute,  but  the  same  shall  be 
deemed  sufficient  if  it  conforms  thereto  substantially, 
and  does  not  vary  in  any  matter  to  the  prejudice  of  the 
rights  of  the  party  to  whom  or  for  whose  benefit  such 
bond  shall  have  been  given. ' '  ^ 

So  the  statute  provides  that  ''whenever  such  bond  has 
been  heretofore,  or  shall  hereafter  be  given,  and  shall 
be  defective  in  any  respect,  the  court,  officer,  or  body 

1  Jud.  Act,  eh.  16,  §9;  Comp.  bond  on  being  given  an  opportunity 
Laws  1915,  §  12486.  to  do  so,  the  writ  of  replevin  will 

2  Jud.  Act,  eh.  16,  §  10 ;  Comp.  not  be  quashed.  Donley  v.  Fowler, 
Laws  1915,   §  12487.  147  Mich.  290. 

Where   in    an    action    of   replevin  Where  the  bond  conforms  substan- 

brought  to  recover  the  possession  of  tially    to    the    requirements    of    the 

distrained  beasts  an  indemnity  bond  statute   and   does  not   vary   in   any 

was  given  instead  of  a  replevin  bond  matter  to  the  prejudice  of  the  rights 

and   where  the   plaintiff   was  under  of  the  relator,  it  must  be  held  good 

the  impression  that  he  had  given  a,  under  this  section  as  to  him.     King 

proper  bond  and  later  files  a  proper  v.  Gridley,  69  Mich.  91. 


238  Bonds  §  2 

who  would  be  authorized  to  receive  the  same,  or  to  en- 
tertain any  proceedings  in  consequence  of  such  bond,  if 
the  same  had  been  perfect,  may,  on  the  application  of 
all  the  obligors  therein,  amend  the  same  in  any  respect, 
or  may,  on  the  application  of  the  person  required  to  give 
such  bond,  allow  a  new  one  to  be  substituted  in  the  place 
thereof,  bearing  date  at  the  time  when  such  bond  was 
required  to  be  given,  and  such  bond  shall  thereupon  be 
deemed  valid  from  the  time  of  the  execution  of  such  de- 
fective bond.  When  application  is  made  to  amend,  said 
court,  officer,  or  body  shall  have  power  to  amend  such 
bond  in  any  respect,  and  without  regard  to  the  particu- 
lar amendment  applied  for,  so  as  to  make  said  defective 
bond  such  a  one  as  might  have  been  required  when  the 
latter  was  given.  AVhen  a  new  bond  is  allowed,  it  shall 
be  such  in  form,  penalty,  and  other  respects,  as  might 
have  been  demanded  when  the  defective  bond  was 
given."  ^ 

§  3.  Who  may  sue  on  bonds  of  public  officers. 

The  Judicature  Act  provides  that  "any  person  to  whom 
a  cause  of  action  shall  accrue  upon  the  bond  of  any  pub- 
lic officer,  required  to  give  bond  to  the  people  of  this 
state,  may  prosecute  a  suit  for  recovery  on  said  bond 
in  his  own  name."* 

§  4.  Effect  of  another  action  pending"  or  another  judg- 
ment on  same  bond. 
In  case  of  officer's  bonds  and  the  other  bonds  men- 
tioned in  the  statute,  "during  the  pendency  of  any  suit 
upon  such  official  bond,  or  after  judgment  rendered  in 
such  suit,  any  other  party  aggrieved  by  the  default  or 
delinquency  of  such  officer,  may,  in  like  manner  prose- 

8  Jud.    Act,    ch.    16,    §11;    Comp.  tution   of  new  one  in   Small  v.  Ne- 

Laws  1915,  §  12488.  waygo  Circuit  Judge,  187  Mich.  532. 

Statute     applied     by     permitting  4  Jud.    Act,    ch.    12,    §2;     Comp. 

withdrawal  of  stay  bond  and  substi-  Laws  1915,  §  12.15."^. 


§  5  Bonds  239 

cute  an  action  upon  such  official  bond;  and  the  pendency 
of  any  other  suit  on  the  same  bond,  or  a  judgment  re- 
covered by  or  against  any  other  person  on  such  bond, 
shall  not  abate  or  in  any  manner  affect  such  suit,  or  the 
proceedings  therein,"  except  as  otherwise  provided.* 

No  such  suit  shall  be  barred,  nor  shall  the  amount 
which  the  plaintiff  may  be  entitled  to  recover  therein, 
be  affected  by  any  notice  given  by  any  surety  in  such 
bond,  of  a  judgment  recovered  thereon,  unless  it  be  ac- 
companied by  an  allegation  that  the  sureties  in  such 
bond,  some  or  one  of  them,  have  been  obliged  to  pay  the 
damages  assessed  by  such  judgment,  or  some  part  there- 
of, for  the  want  of  sufficient  property  of  such  officer 
whereon  to  (levy  the  same,  or  that  they  will  be  obliged 
to  pay  the  same,  or  some  part  thereof  for  the  same  rea- 
son; nor  unless  such  notice  be  verified  by  the  oath  of  the 
defendant  giving  the  same.  If  it  shall  appear  that  the 
amount  of  any  damages  so  recovered,  which  such  surety 
has  been  obliged  to  pay,  or  will  be  obliged  to  pay,  as 
specified  in  the  last  section,  is  equal  to  the  amount  for 
which  such  defendant  shall  be  liable,  by  virtue  of  the 
bond,  he  shall  be  acquitted  and  discharged  of  all  further 
liability,  and  judgment  shall  be  rendered  in  his  favor. 
If  it  shall  appear  that  the  amount  of  any  damages  so 
recovered,  which  such  surety  has  been  obliged  to  ])ay,  or 
which  he  will  be  obliged  to  pay,  is  not  equal  to  the  lia- 
bility of  such  surety,  the  amount  thereof  shall  be  allowed 
to  such  defendant,  in  estimating  the  extent  of  his  liability 
in  any  such  action.® 

§  5.  Distribution  of  recovery  on  official  bonds. 

The  Judicature  Act  provides  that  if  several  judgments 
on  official  bonds  of  any  officer  exceed  the  liabilities  of 
the  sureties,  or  sufficient  moneys  shall  not  be  raised  on 

6Jud.    Act,    eh.    21,    §2;     Comp.  6  Jud.   Act,  ch.  21,   §§3-5;    Comp. 

Laws  1915,  §  12784.  Laws  1915,  §§  12785-12787. 


240  Bonds  §  5 

executions  on  judgments  obtained  at  the  same  term,  the 
moneys  are  to  be  distributed  between  the  successful 
plaintiffs  in  proportion  to  the  amount  of  their  respective 
recoveries."'^ 

§  6.  Pleading,  verdict  and  judgment. 

In  an  action  on  a  bond,  the  declaration  need  not  aver 
the  consideration  for  which  it  was  given,^  nor  allege  de- 
livery where  profert  is  made,®  nor  set  forth  the  penal 
part  of  the  bond  where  that  part  constituting  a  founda- 
tion of  the  action  is  set  forth ;  ^^  but  in  actions  on  bonds 
for  the  breach  of  any  condition  other  than  the  payment 
of  money,  or  for  the  recovery  of  any  penal  sum  for  the 
non-performance  of  any  covenant  or  written  agreement, 
the  plaintiff  must  assign,  in  his  declaration,  the  specific 
breaches  for  w^hich  the  action  is  brought.^^  And  it  is 
expressly  provided  by  the  Judicature  Act  that  "when 
an  action  shall  be  prosecuted  in  any  court  of  law  upon 
any  bond  of  any  public  officer,  or  upon  any  bond  for  the 
breach  of  any  condition,  other  than  the  payment  of 
money,  or  for  any  penal  sum  for  the  non-performance 
of  any  covenant  or  written  agreement,  the  plaintiff  shall 
assign  the  specific  breaches  for  which  the  action  is 
brought,  and  upon  the  trial  of  such  action,  the  verdict 
and  judgment  shall  be  for  such  damages  as  are  found 
arising  from  the  specific  breaches  assigned;  and  such 
judgment  shall  not  be  a  bar  to  any  further  action  by  the 
same,  or  any  other  plaintiff,  for  any  subsequent  breaches 
of  the  condition  of  said  bond;  but  said  bond  shall  stand 
as  security  for  any  further  or  subsequent  breaches  to 
the  amount  of  the  remainder  of  the  penalty  thereof. ' ' " 

7Jud.  Act,  eh.  21,  §§7,  8;  Comp.  H  Assignment  using  and  negativ- 

Laws  1915,  §§12789,  12790.  ing  the  language  of  the  condition  is 

•  Eobson    V.    Dayton,    111    Mich.  good.      Van    Middlesworth    v.    Van 

440;  Dye  v.  Mann,  10  Mich.  291.  Middlesworth,  32  Mich.  183. 

9  Boyer  V.  Sowlcs,  109  Mich.  481.  12  Jud.    Act,    eh.    21,    §1;    Comp. 

10  Prentiss    v.    Spalding,    2    Doug.       Laws  1915,  §12783. 
84. 


§  6  Bonds  241 

state  Bar  Association  Form  of  Declaratiou  on  a  Fidelity  Bond 

(Title  of  court  and  cause.) 
The  plaintiff  says: 

1.  That,  on  ,  19..,  the  defendant  executed  a  bond  for  the  pay- 
ment to  the  plaintiff  of   dollars. 

2.  That  the  condition  of  the  said  bond  was  that,  if  C.  D.  should  faith- 
fully discharge  his  duties  as  cashier  of  the  plaintiff,  the  bond  should  be 
void. 

3.  That  the  said  C.  D.   did  not  faithfully  discharge  his  duties  as  such 

cashier,  but,  on   ,  19..,  appropriated  and  converted  to  hi8  own  use 

dollars  of  the  moneys   of  the  plaintiff  coming  into  his  hands  as 

such  cashier. 

4.  Wherefore,  etc. 

Form  of  Count  on  Bond  Without  Condition 

The  plaintiff  says: 

1.  That  the  said  plaintiff  heretofore,  to  wit,  on    ,  at    ,  by 

his  certain  writing  obligatory,  sealed  with  his  seal,  the  date  whereof  is 
the  date  and  year  aforesaid,  a  copy  whereof  is  hereto  annexed,  acknowl- 
edged himself  to  be  held  and  firmly  bound  unto   the  said  plaintiff  in  the 

sum  of   dollars,  to  be  paid  to  the  said  plaintiff.     2.  That  the  said 

defendant,  although  requested  so  to  do,  has  not  as  yet  paid  the  said  sum 
of dollars,  or  any  part  thereof,  to  the  said  plaintiff. 

Form  of  Count  on  Bond  with  Condition  Other  than  for  Payment  of 

Money 

The  plaintiff  says: 

1.  That  the  said  defendant  heretofore,  to  wit,  on ,  at   ,  by 

his  certain  writing  obligatory,  sealed  with  his  seal,  the  date  whereof  is 
the  day  and  year  aforesaid,  a  copy  of  which  is  hereto  annexed,  acknowl- 
edged himself  to  be  held  and  firmly  bound  unto  the  said  plaintiff  in  the 

sum  of   dollars,  to  be  paid  to  the  said  plaintiff.     2.  That  the  said 

writing  obligatory  was  and  is  subject  to  a  certain  condition  thereunder 
written,  whereby,  after  reciting  that  (here  allege  the  recitals,  if  any),  it 
is  provided  (here  allege  the  conditions),  then  the  said  obligation  was  to 
be  void,  otherwise  to  remain  in  full  force  and  effect.  3.  That,  after  the 
making  of  the  said  writing  obligatory  the  said  defendant  (here  assign  the 
specific  breach  of  the  condition  relied  upon).  If  there  are  more  than  one 
breach,  add  as  follows:  4.  That,  by  means  of  the  premises,  the  said  plain- 
tiff has  sustained  damages  in  a  large  sum  of  money,  to  wit,  in  the  sum 

of    dollars.     5.  That    the    said    defendant,    although    requested    so 

to  do,  has  not  as  yet  paid  the  said  sum  of  money,  or  any  part  thereof,  to 
the  said  plaintiff. 
1  Abbott— 16 


242  Bonds  §  7 

§  7.  Limitation  of  time  to  sue  on  official  bonds. 

Actions  founded  on  bonds  of  public  officers  must  be 
brought  within  ten  years,^^  and  a  provision  in  suck  a 
bond  prescribing  a  shorter  limitation  is  of  no  effect  and 
must  be  treated  as  surplusage.^* 

BOOKS 

See  Discovery  and  Inspection;   Trial;  Execution;  Quo  Warranto. 

BOUNDARIES 

See  Ejectment. 

BREACH  OF  PEACE 

See  Contempt;  Summary  Proceedings,  etc. 

BREACH  OF  PROMISE  TO  MARRY 

An  action  for  breach  of  promise  to  marry  is  in  form 
ex  contractu  although  in  the  nature  of  an  action  ex 
delicto.^  The  few  decisions  in  this  state  in  regard  to 
such  actions  in  reference  to  pleading,^  evidence,^  instnic- 
tions  to  the  jury,*  and  damages,^  are  referred  to  in  the 
notes  below. 

Form  of  Coxmt  for  Breach  of  Promise  to  Marry  on  Request 

The  plaintiff  says: 

1.  That,  heretofore,  to  T\it,  on   ,  at   ,  in  consideration  that 

the   said   plaintiff,  being  then  and   there  an  unmarried   person,  at  the  re- 

13  See  Limitation  of  Actions.  4  Gagush  v.  Hoeft,  198  Mich.  263; 

14  Forest  Tp.  v.  American  Bond-  Jaskolski  v.  Morawski,  178  Mich, 
ing  Co.  of  Baltimore,  187  Mich.  6.57.       .325;   Spencer  v.  Simmons,  160  Mich. 

1  White    V.    Thomas,    12    Ohio    St.  292;      Koberts     v.     Druillard,     123 

312.  Mich.    286;    Mahiat    v.    Codde,    106 

2Houser    v.    Carmodj,    173    Mich.  Mich.    387;    Eutter    v.    Collins,    103 

121;  Goddard  v.  Westcott,  82  Mich.  Mich.    143;     Goddard    v.    Westcott, 

180;    Bennett    v.    Beam,    42    Mich.  82   Mich.   180;    Miller  v.  Hosier,   31 

346.  Mich.  475. 

3Bischoff  V.  Harris,  198  Mich.  59;  6  Jaskolski  v.  Morawski,  178  Mich 

Duff  V.  Judson,  160  Mich.  386;  Rut-  325;   Houser  v.  Carmody,  173  Mich 

ter   V.    Collins,    96   Mich.    510;    Mc-  121;  Duff  v.  .Tudson,  160  Mich.  386 

Pherson  v.  Ryan,  59  Mich.  33;  Van-  Spencer  v.  Simmons,  160  Mich.  292 

derpool  v.  Richardson,  52  Mich.  336;  Rutter  v.  Collins,  96  Mich.  510. 
Bennett  v.  Beam,  42  Mich.  346. 


Briefs  243 

quest  of  the  said  defendant,  had  promised  him  to  marry  the  said  defend- 
ant, the  said  defendant  undertook  and  promised  the  said  plaintiff  that 
he  would  marry  her,  Tvhen  he  should  be  thereunto  afterwards  requested 
by  the  said  plaintiff  and  the  said  plaintiff  avers.  2.  That  she,  relying 
on  the  said  undertaking  and  promise  of  the  said  defendant,  has  always 
thence   hitherto   remained,   and   still   is,  unmarried   and   ready   and   willing 

to  marry  the  said  defendant.     3.  That  the  said  plaintiff,  to  wit,  on , 

at  ,  requested  the  said  defendant  to  marry  her.  4.  That  a  reason- 
able time  has  since  elapsed.  5.  That  the  said  defendant  did  not,  nor  would, 
marry  the  said  plaintiff. 

Form  of  Count  Upon  Promise  to  Marry  Within  a  Reasonable  Time 

The   plaintiff  says: 

1.  That,  heretofore,  to  wit,  on   ,  at   ,  in  consideration  that 

the  said  plaintiff,  being  then  and  there  an  unmarried  person,  at  the  re- 
quest of  the  said  defendant,  had  promised  him  to  marry  the  said  defend- 
ant, the  said  defendant  undertook  and  promised  the  said  plaintiff  that  he 
would  marry  the  said  plaintiff  within  a  reasonable  time.  2.  That  the  said 
plaintiff,  relying  on  the  said  undertaking  and  promise  of  the  said  defend- 
ant, has  always  remained,  and  still  is,  unmarried  and  ready  and  willing 
to  marry  the  said  defendant.  3.  That  a  reasonable  time  has  elapsed  since 
the  making  of  the  said  undertaking  and  promise  by  the  said  defendant.  4. 
That  the  said  defendant  did  not,  nor  would,  marry  the  said  plaintiff. 

Form  of  Count  Upon  Promise  to  Marry  When  Defendant  Has  Married 

Another 

The  plaintiff  says: 

1.  That,  heretofore,  to  wit,  on    ,  at    ,  in  consideration  that 

the  said  plaintiff,  being  then  and  there  an  unmarried  person,  at  the  request 
of  the  said  defendant,  had  promised  him  to  marry  the  said  defendant,  the 
said  defendant  undertook  and  promised  the  said  plaintiff  that  he  would 
marry  the  said  plaintiff  when  he  should  be  thereunto  afterwards  requested 
by  the  said  plaintiff.  2.  That  the  said  plaintiff,  relying  on  the  said  under- 
taking and  promise  of  the  said  defendant,  has  always  remained,  and  still 
is,  unmarried  and  ready  and  willing  to  marry  the  said  defendant.     3.     That 

the  said  defendant,  to  wit,  on   ,  at   ,  married  another  person, 

to  wit,  V.   K.,  and  did  not  marry  the  said  plaintiff. 

BRIEFS 

§  1.  Necessity  for  and  contents. 

§  2.  Service  of. 

§  3.  Supplemental  briefs. 

§  4.  Effect  of  failure  to  serve  seasonably. 

S  5.  Filing   copies  of. 

§  6.  Who  may  file. 

§  7.  Remedy   where   insufficient   or   improper. 

Cross-references;    Supreme  Court;   Error,  Writ  op;  Assignments  or 
Ebsob. 


244 


Briefs 


§1 


§  1.  Necessity  for  and  contents. 

The  lirief  of  a  i^arty  bringing  a  cause  into  the  supreme 
court  shoukl  contain  ^  a  clear  and  concise  statement  of 
the  facts  of  the  case,  distinct  from  the  argument,^  and 
of  the  errors  upon  which  he  relies,'  the  questions  in- 
volved and  the  manner  in  which  they  are  raised.*  It 
is  not  the  jjrovince  of  the  court  in  any  of  these  respects 
to  perform  the  duties  devolving  upon  counsel  and  usual- 
ly no  attempt  will  be  made  to  do  so.*  Such  omissions 
are  productive  of  much  inconvenience  to  the  court  and 
are  hazardous  to  the  interests  of  an  appellant.^  The 
court  will  consider  the  appellant's  statement  of  facts 
sufficient  and  accurate  unless  the  opposite  party  points 
out  in  his  brief  wherein  the  statement  is  insufficient  or 
inaccurate.'''  If  the  appellee,  instead  of  merely  pointing 
out  wherein  the  statement  of  facts  made  by  the  appellant 
is  insufficient  or  incorrect,  makes  a  new  statement  at 


ISup.  Ct.  Kule  40. 

aPreeman  v.  Shaw,  173  Mich. 
262;  Carby  v.  Combs,  166  Mich. 
347;  Mills  v.  Warner,  167  Mich. 
619;  Yanelli  v.  Littlejohn,  172  Mich. 
91;  Euttle  v.  Foss,  161  Mich.  132; 
Jones  V.  Cody,  132  Mich.  13;  Stowe 
V.  United  States  Exp.  Co.,  179  Mich. 
349;  Reed  v.  McCready,  170  Mich. 
532.  But  see  St.  James  v.  Erskine, 
155  Mich.  506. 

Diseonne<'ted  excerpts  from  the 
testimony  are  not  a  compliance. 
Carby  v.  Combs,  166  Mich.  347. 

3  People  V.  Van  Alstyne,  157  Mich. 
366;  Vincent  v.  Port  Huron  Sav. 
Bank,  147  Mich.  437;  Rogers  v.  Fer- 
ris, 107  Mich.  126;  Ransom  v.  Wes- 
ton, 110  Mich.  240;  McKirchey  v. 
Mcllvenna,  161  Mich.  57;  Hunter  v. 
Dwight  Tp.,  157  Mich.  634;  Wavle  v. 
Michigan  United  R.  Co.,  170  Mich. 
81. 

4  Sup.  Ct.  Rule  40;  People  v.  Mar- 
tin, 176  Mich.  381;  Gould  v.  Young, 


143  Mich.  572;  Eberts  v.  Detroit, 
etc.,  R.  Co.,  151  Mich.  260. 

It  is  not  sufficient,  in  stating  the 
errors  relied  on,  to  merely  refer  to 
marginal  numbers  on  the  record. 
Carby  v.  Combs,  166  Mich.  347. 

6  Keenan  v.  City  of  Mount  Pleas- 
ant, 176  Mich.  620;  St.  James  v. 
Erskine,  155  Mich.  606;  Bickle  v. 
Jameson,  146  Mich.  483. 

6  Hunter  v.  Dwight  Tp.,  157  Mich. 
638;  People  v.  Peck,  139  Mich.  680. 

7  Sup.  Ct.  Rule  40;   Ten  Broek  v. 
Jansma,    161    Mich.    597;    Ferguson 
V.    Wilson,    122    Mich.    97;    Shingle- 
meyer    v.    Wright,    124    Mich.    230 
Freeman   v.   Shaw,    173   Mich.    262 
Sassaman  v.  Wells,  178  Mich.   167 
People  V.  McGregor,  178  Mich.  436 
Wliitford    V.    Washington    Tp.,    184 
Mich.    422;    Carby    v.    Combs,    166 
Mich.  347;  Galvin  v.  Detroit  Steer- 
ing Wlieel,  etc.,  Co.,  176  Mich.  569; 
Bartholomew    v.    Walsh,    191    Mich. 
252. 


§1 


Briefs 


245 


length,  the  court  may  disregard  it  entirely  and  accept 
the  statement  of  the  appellant.®  The  statement  by  the 
appellant  will  be  considered  as  sufficient  and  accurate 
if  the  appellee  points  out  nothing  to  the  contrary.®  In- 
accuracies in  the  appellant's  statement  of  facts  should 
be  pointed  out  in  the  beginning  of  the  appellee's  brief 
rather  than  in  later  portions  of  it.^® 

The  failure  of  an  appellant  to  present  a  brief  precludes 
a  consideration  of  the  eiTors  assigned  by  him,^^  and,  even 
though  a  brief  be  presented,  all  assignments  of  error 
which  are  not  discussed  in  it  will  be  treated  by  the  court 
as  abandoned.^^  Moreover,  only  such  points  as  an  ap- 
pellant makes  and  relies  upon  in  his  original  brief  will 
be  considered  by  the  court  in  disposing  of  the  case. 
Additional  points  discussed  in  a  supplemental  brief  will 
not  be  considered." 


8  Berry  v.  Harbor  Springs  R.  Co., 
173  Mich.  181;  Shinglemeyer  v. 
Wright,  124  Mich.  230;  People  v. 
Boyd,  151  Mich.  577;  Haden  v.  Clos- 
ser,  153  Mich.  182;  Cobe  v.  Sum- 
mers, 143  Mich.  117. 

9  Chase  v.  Michigan  United  Rya. 
Co.,  165  Mich.  493. 

10  Monger  v.  New  Era  Ass  'n,  145 
Mich.  683. 

HBusch  V.  Fisher,  89  Mich.  192. 

Briefs  on  motions  in  supreme 
court  are  necessary.  Sup.  Ct.  Rule 
30. 

l2Nissly  V.  Detroit,  etc.,  R.  Co., 
168  Mich.  676,  682;  In  re  Warring 's 
Estate,  196  Mich.  720;  Lacas  v.  De- 
troit City  R.  Co.,  92  Mich.  412; 
Shippy  V.  Village  of  Au  Sable,  85 
Mich.  280;  Williamson  v.  Hannan, 
200  Mich.  658;  Sullivan  v.  Hall,  86 
Mich.  7;  Graves  v.  City  of  Battle 
Creek,  95  Mich.  266;  Lynch  v. 
Craney,  95  Mich.  199;  Ashman  v. 
Flint,  etc.,  R.  Co.,  90  Mich.  567; 
Black    V.    Dawson,    82    Mich.    485; 


Warnes  v.  Brubaker,  107  Mich.  440; 
French  v.  Ryan,  104  Mich.  625; 
Anketell  v.  Hayward,  119  Mich.  525; 
Ferguson  v.  Wilson,  122  Mich.  97; 
Carmer  v.  Hubbard,  123  Mich.  333; 
People  V.  Cole,  139  Mich.  312; 
Busch  V.  Fisher,  89  Mich.  192;  Ma- 
son V.  Patrick,  100  Mich.  577; 
Gerardo  v.  Brush,  120  Mich.  405; 
Walker  v.  Mack,  129  Mich.  527; 
Smith  V.  Michigan  Realty,  etc.,  Co., 
175  Mich.  600;  People  v.  Jefferson, 
161  Mich.  621;  Cronenwett  v.  United 
States,  etc.,  Ins.  Co.,  140  Mich.  522; 
Walsh  V.  Lake  Shore,  etc.,  R.  Co., 
185  Mich.  177;  People  v.  Cole,  139 
Mich.  312. 

What  constitutes  discussion,  see 
French  v.  Ryan,  104  Mich.  625; 
Mason  v.  Patrick,  100  Mich.  577. 

13  Lake  Erie  Land  Co.  v.  Chilin- 
ski,  197  Mich.  216;  People  v.  Cole, 
139  Mich.  312;  Black  v.  Dawson, 
82  Mich.  485;  Ashman  v.  Flint,  etc., 
R.  Co.,  90  Mich.  567;  Hewitt  v. 
Morley,  111  Mich.  187;   AnketeU  v. 


246 


Briefs 


§1 


Assignments  of  errors  not  discussed  in  appellant's 
brief  will  be  treated  as  waived  notwithstanding  appel- 
lant in  his  brief  states  that  he  does  not  waive  any  assign- 
ment," and  although  the  point  was  argued  at  the  hear- 
ing.^* So  objections  in  the  brief  which  contain  no  argu- 
ment in  support  thereof  will  not  be  considered.^^  The 
briefs  must  fairly  present  the  case  on  each  side/'''  but  not 
contain  suggestions  that  the  record  does  not  fairly  set  out 
the  facts. ^®  Contentions  will  not  be  considered  where 
involving  an  extended  computation  which  appellant  has 
not  incorporated  in  his  brief.^^    Where  testimony  is  re- 


Hayward,  119  Mich.  525;  Hart  v. 
Doyle,  128  Mich.  257;  Foster  v. 
East  Jordan  Lumber  Co.,  141  Mich. 
316;  Lewis  v.  Jacobs,  153  Mich. 
664;  Lacas  v.  Detroit  City  Ey.  Co., 
92  Mich.  412;  Escanaba  Timber 
Land  Co.  v.  Rusch,  147  Mich.  619; 
South  Arm  Lumber  Co.  v.  Silver- 
throne,  138  Mich.  465;  Ferguson  v. 
Wilson,  122  Mich.  97;  Gerardo  v. 
Brush,  120  Mich.  405;  Lewis  v.  Ja- 
cobs, 153  Mich.  664;  Nissly  v.  De- 
troit, etc.,  R.  Co.,  168  Mich.  676; 
O'Dell  V.  Goff,  153  Mich.  643;  Ro- 
senthal V.  Rosenthal,  154  Mich.  533 ; 
Lubbeys  v.  Manlius  Tp.,  172  Mich. 
387;  Smith  v.  Michigan  Realty  & 
Construction  Co.,  175  Mich.  600; 
Priebisch  v.  Ottenwess,  176  Mich. 
476;  In  re  Hoffman's  Estate,  183 
Mich.  67. 

14  Ashman  v.  Flint  &  P.  M.  R. 
Co.,  90  Mich.  567;  Warnes  v.  Bru- 
baker,  107  Mich.  440;  Carmer  v. 
Hubbard,  123  Mich.  333. 

15  Lacas  v.  Detroit  City  Ry.  Co., 
92  Mich.  412;  O'Dell  v.  Goff,  153 
Mich.   643. 

16  Greenman  v.  O  'Riley,  144  Mich. 
534;  Walker  v.  Mack,  129  Mich. 
527;  McKerchey  v.  Mcllvenna,  161 
Mich.   57. 


Where  appellant  in  his  brief,  in 
discussing  assignments  of  error, 
merely  stated  that  any  discussion  of 
the  same  would  be  a  reiteration  of 
the  argument  in  support  of  pre- 
vious assignments  considered,  he 
waived  the  assignment.  Pierson  v. 
Illinois  Cent.  Ry.  Co.,  149  Mich. 
167. 

17  See  Hoffman  v.  Pack,  Woods  & 
Co.,  114  Mich.  1. 

Where  the  exceptions  to  findings 
of  fact  do  not  state  the  grounds  of 
the  exceptions,  but  in  his  brief  ap- 
pellant claims  they  are  not  sup- 
ported by  the  evidence,  it  will  be 
presumed  that  that  was  the  ground 
of  the  exception.  First  Nat.  Bank 
V.    Walker,    115   Mich.   434. 

Where  the  brief  states  it  is  based 
on  findings  of  law,  it  will  be  as- 
sumed that  the  only  question  raised 
is  whether  the  findings  of  fact  sup- 
port the  conclusions  of  law.  Wes- 
ton Lumber  Co.  v.  Munising  Tp., 
123   Mich.   138. 

18  Briggs  V.  Milburn,  40  Mich. 
512. 

WMcLeod  v.  Hunt,  128  Mich. 
124. 


§  1  Briefs  247 

lied  on  in  tlie  brief,  the  place  in  the  record  where  it  is 
found  must  be  pointed  out  or  it  will  not  be  considered.'^® 
But  where  the  record  and  the  brief  of  appellant  are 
printed  and  served  at  the  same  time,  it  is  proper  to  en- 
close the  clauses  of  the  charge,  which  are  objected  to, 
in  brackets  in  the  record  and  refer  to  the  brackets  by 
numbers.^^  Statements  in  the  brief  will  not  warrant  the 
supreme  court  in  drawing  any  inference  of  fact  opposed 
to  the  findings  of  the  trial  judge.^^  And  of  course  the 
record  cannot  be  supplemented  by  voluntaiy  and  un- 
supported statements  of  fact  in  the  brief.^' 

Even  though  assignments  of  error  are  mentioned  in 
an  appellant's  brief,  if  the  exceptions  relied  upon  are 
not  indexed  in  the  printed  record  and  the  pages  upon 
which  they  may  be  found  are  not  referred  to,  either  in 
the  assignments  of  error  or  the  brief,  they  wall  not  be 
considered.^* 

Positions  assumed  by  counsel  should  be  sustained  by 
citation  of  authorities.  Where  adjudicated  cases  are 
cited,  reference  should  be  made  to  the  official  reports 
rather  than  to  unofficial  publications.^^  There  is,  how- 
ever, no  objection  to  the  citation  of  unofficial  publica- 
tions, if  the  official  reports  be  also  cited  or  if  the  case 
is  not  reported  in  the  official  reports.^^    In  citing  cases, 

20  Rogers  v.  Ferris,  107  Mich.  126.  24  Reeder  v.  Moore,  95  Mich.  594 

21  Dikeman    v.    Arnold,    83    Mich.  Pease     v.     Miiiiro,     83     Mich.     475 
218.  Nichol    V.    Ward,    156    Mich.    136 

22  Hoffman     v.     Silverthorn,     137  Duff     v.    Judson,     160    Mich.     386 
Mich.   60.  Showen    v.    J.    L.    Owens    Co.,    182 

23  In  re  Marx's  Estate,  201  Mich.  Mich.  264;  Niagara  Sprayer  Co.  v. 
504.  Wood,  186  Mich.  303;  Sup.  Ct.  Rule 

When  attorneys  testified   on  both  36. 

sides,  the  conflict  in  their  testimony  26  Webber    v.    Hayes,    117    Mich, 

should  not  be  commented  on  in  the  256;   People  v.  Jamieson,  124  Mich, 

brief    by    a    reference    to    their    re-  164. 

spective     ratings     in     Martindale's  26  Webber    v.    Hayes,    117    Mich. 

American     Law    Directory.      Sellers  256. 
V.  Perry,  191  Mich.  619,  628. 


248  Briefs  §  1 

the  title  of  the  case  as  well  as  tlie  volume  and  page  of 
the  book  should  be  given.^'' 

§  2.  Service  of. 

Two  copies  of  the  appellant's  brief  are  required  to  be 
served  upon  the  appellee  as  soon  as  printed  and  at  least 
twenty  days  before  the  first  day  of  the  term  at  which 
the  cause  is  regularly  noticed  for  hearing.  Two  copies 
of  the  appellee 's  brief  must  be  served  upon  the  appellant 
as  soon  as  printed  and  at  least  five  days  before  the  first 
day  of  the  term  at  which  the  cause  is  regularly  noticed 
for  hearing,  unless  the  printed  record  and  the  appellant's 
brief  are  served  thirty  days  before  the  first  day  of  the 
term,  in  which  case  the  appellee's  brief  must  be  served 
at  least  fifteen  days  before  the  first  day  of  the  term.^' 

§  3.  Supplemental  briefs. 

The  original  briefs  of  the  parties  should  fairly  present 
the  case  on  each  side;  but  supplemental  briefs  may  be 
printed  and  served  at  any  time  before  a  cause  is  placed 
upon  the  call  for  argument,  and  subsequently  by  special 
permission  of  the  court  onl}'-.^®  Only  such  points,  how- 
ever, as  a  party  treats  in  his  original  brief  will  be  con- 
sidered by  the  court,  the  function  of  supplemental  briefs 
being  confined  to  the  elaboration  of  the  points  so  treated, 
and  not  permitted  to  be  extended  to  the  argument  of  any 
additional  points. '° 

§  4.  Effect  of  failure  to  serve  seasonably. 

If  the  brief  of  either  party  is  not  served  within  the 
time  limited  for  serving  it,  the  opposite  ])arty  may,  at 

a^Schulte  V.  Kelly,  124  Mich.  330.  though  he  be  the  appellee.    Pinel  v. 

28  Sup.  Ct.  Eule  41.     In  chancery  Pinel,  172  Mich.  611. 

cases,  it  is  the  duty  of  the  plaintiff,  20  Sup.  Ct.  Rule  41. 

after  a  hearing  and  decree  on  plead-  30  Black  v.  Dawson,  82  Mich.  485 ; 

ings  and  proofs,  to  furnish  the  first  Anketell  v.  Hay  ward,  119  Mich.  525. 
brief    in    the    supreme    court,    even 


Brokers  249 

his  option,  on  the  first  day  of  the  term,  have  the  cause 
placed  at  the  foot  of  the  calendar  or  continued,  and  the 
court  may,  in  proper  cases,  order  the  payment  of  a  coun- 
sel fee  by  the  party  in  default.^^ 

§  5.  Filing  copies  of. 

Eighteen  copies  of  all  briefs  are  required  to  be  filed 
at  least  forty-eight  hours  before  the  case  has  been  placed 
on  call;  and  no  oral  argument  will  be  heard  on  behalf  of 
a  party  failing  to  comply  with  this  provision.*'' 

§  6.  Who  may  file. 

In  addition  to  the  appellant  and  appellee,  in  case  of 
a  writ  of  error  or  certiorari,  or  the  parties  to  a  mandamus 
proceeding  brought  in  the  supreme  court,  the  supreme 
court  frequently  accepts  briefs  filed  by  persons  who  may 
be  interested  in  the  proper  solution  of  questions  sub- 
mitted to  the  court  for  determination,  and  it  has  been 
said  that ' '  the  practice  should  not  be  discouraged. ' '  ** 

§  7.  Remedy  where  insufficient  or  improper. 

A  brief,  although  open  to  criticism  because  of  intem- 
perate language,  will  not  necessarily  be  stricken  from  the 
files.** 

BROKERS 

Form  of  Count  Against  a  Shipping  Broker  for  Not  Forwarding  Plaintiff's 

Goods  by  Vessel 

The  plaintiff  says: 

1.  That,  before  and  at  the  time  of  the  making  of  the  promise  and  under- 
taking of  the  said  defendant  hereinafter  mentioned,  the  said  defendant 
was  a  shipping  broker  and  the  proprietor  of  an  office  for  the  reception  of 
goods  to  be  forwarded  and  sent  by  vessel  from  the  port  of  Detroit  to  Duluth, 
and  for  keeping  such  goods  until  the  same  should  be  delivered  by  tlie  said 

31  Sup.  Ct.  Rule  41.  84  Landsberger  v.  Joyce,  203  Mich. 

32  Sup.  Ct.  Rule  42.  156.     See  Sellers  v.  Perry,  191  Mich. 

33  Harrington    v.    Otsego  Circuit      619,  628. 
.hulge,  204  Mich.  327. 


250  Brokers 

defendant  -within  a  reasonable  time  to  the  master  or  crew  of  such  vessel, 
to  be  shipped  on  board,  for  the  purpose  aforesaid.     2.  That,  thereupon,  to 

wit,  on ,  at ,  in  consideration  that  the  plaintiff,  at  the  request  of 

the   said   defendant,   delivered   to   the   said   defendant   at  his   office   certain 

goods,  to  wit, ,  of  great  value,  to  wit,  of  the  value  of dollars, 

upon  the  terms  that  the  said  defendant  should  safely  keep  the  said  goods 
until  the  same  should  be  delivered  by  the  said  defendant,  within  a  reason- 
able time,  to  the  master  or  crew  of  a  vessel  about  to  proceed  from  the  port 
of  Detroit  to  Duluth,  for  the  purpose  aforesaid,  for  reward  to  the  said 
defendant  in  that  behalf,  the  said  defendant  undertook  and  promised  tho 
said  plaintiff  that  he  would  safely  keep  the  said  goods  in  his  office  until  the 
same  should  be  so  delivered  by  him  and  that  he  would,  within  a  reasonable 
time,  deliver  the  same  to  the  master  or  crew  of  the  vessel  about  to  proceed 
from  the  port  of  Detroit  to  Duluth,  to  be  shipped  on  board,  from  the  port 
of  Detroit  to  Duluth.  3.  That  the  said  defendant  received  the  said  goods 
upon  the  terms  aforesaid.  4.  That  such  vessel  did,  within  a  reasonable  time, 
proceed  from  the  port  of  Detroit  to  Duluth.  5.  That  the  said  defendant 
could  and  ought  to  have  delivered  the  said  goods  to  the  master  or  crew  of 
such  vessel,  to  be  shipped  on  board  from  the  port  of  Detroit  to  Duluth. 
6.  That  such  reasonable  time  has  elapsed  since  the  said  goods  were  deliv- 
ered to  the  said  defendant  as  aforesaid.  7.  That  the  said  defendant  did 
not,  within  such  reasonable  time,  deliver  the  said  goods  to  the  master  or 
crew  of  such  vessel  for  the  purpose  aforesaid,  but  wrongfully  and  carelessly 
kept  and  detained  the  same  for  an  unreasonable  time,  to  wit,  since  the  de- 
livery thereof  to  him  as  aforesaid  hitherto  at  his  said  office.  8.  That 
thereby  the  said  goods  perished  and  wasted,  and  became  of  no  use  or  value. 
9.  That  thereby  the  said  plaintiff  lost  great  gains  and  profits  from  the  sale 
thereof. 

BUILDING  AND  LOAN  ASSOCIATIONS 

See  Commencement  of  Actions;   Exemptions. 

BUILDINGS 

See  Ejectment;    Replevin. 

BURDEN  OF  PROOF 

See  Trial   (instructions  as  to)  ;   Mandamus;   Quo  Warranto. 

CA.  SA. 

See  Executions. 

CALENDAR 

See    Trial;    Supreme    Court    (calendar    in    supreme    court);    Garnish- 
ment. 


Carriers  251 

CAPIAS  AD  RESPONDENDUM 

See  Commencement  of  Actions,  IV;  Bail;  Mandamus;  Ekror,  Writ  of. 

CAPTION 

See  Affidavits;   Pleading;   Process. 

CARD  PLAYING 

See  Trial. 

CARRIERS 

Tlie  law  governing  common  carriers  is  well  set  forth 
in  Hutchinson  on  Carriers.  In  regard  to  practice  in  con- 
nection with  actions  relating  to  carriers,  the  general  rules 
apply  the  same  as  in  other  like  actions.  So  far  as  service 
of  process  to  commence  an  action  against  certain  car- 
riers, where  corporations,  is  concerned,  reference  should 
be  made  to  the  article  entitled  ''Commencement  of 
Actions."  A  few  forms  of  declarations  in  actions  against 
carriers  are  added  hereto. 

state  Bar  Association  Form  of  Declaration  for  Injury  to  Goods  by  a 

Carrier 

(Title   of   court  and   cause.) 
The  plaintiff  says: 

1.  That  the  defendant  is  a  corporation  organized  under  the  laws  of 
this  state  and  is  a  common  carrier  of  goods  from    to    

2.  That,  on   ,  19..,  the  plaintiff  delivered  to  the  defendant,  and 

the  defendant  as  such  carrier  received  from  the  plaintiff  at   ,  cer- 
tain  goods   described   as   follows:     (Describe    them.) 

3.  That  the  defendant  agreed  as  such  carrier  to  carry  said  goods  safely 
from   to   for  hire. 

4.  That  the  defendant  did  not  carry  said  goods  safely,  but  caused  or 
permitted  them  to  be  damaged  in  the  following  respects: 

(State  the  items  of  damage.) 

5.  Wherefore,  etc. 

Another  Form  of  Count  for  Losing  or  Injuring  Goods 

The  j)laiiitiff  says: 

1.  That,  before  and  at  the  time  of  the  making  of  the  undertaking  and 
promise  next  hereinafter  mentioned,  the  said  defendant  was  a  common 
carrier  of  goods  for  hire.     2.  That,  thereupon,  to  wit,  on ,  at , 


'>r.'^ 


Carriers 


in  consideration  that  the  said  plaintiff,  at  the  request  of  the  said  defend- 
ant, delivered  to  the  said  defendant,  by  way  of  his  business  as  such  com- 
mon carrier,  certain  goods,  to  wit,   ,  of  the  value  of   dollars, 

upon  the  terms  that  the  said   defendant  should  take   care  of  and  safely 

and  securely  carry  the  said  goods,  as  such  common  carrier,  from    

to    ,   and   should,   at   said  last-named   place,   deliver   the   said   goods 

to  the  said  plaintiff,  for  reward  to  the  said  defendant  in  that  behalf, 
the   said   defendant    undertook   and   promised    tlie    said    plaintiff    that   he 

would  care  of  and  safely  and  securely  carry  the  said  goods  from   

to    ,  and  would,   at   said  last-named  place,   deliver  the   same  to  the 

said  plaintiff.  3.  That  the  said  defendant  did  not  take  care  of  and  did  not 
safely  and  securely  carry  the  said  goods  for  the  said  plaintiff,  and  did  not 
deliver  the  said  goods  to  the  said  plaintiff.  4.  That,  thereby  said  goods 
were  not  delivered  to  the  said  plaintiff  and  are  lost  to  him. 

Form  of  Count  in  Case  Against  Common  Carrier  for  Injuring  Goods 

The  plaintiff  says: 

1.  That  before  and  at  the  time  of  the  delivery  of  the  goods  and  chat- 
tels to  the  said  defendant,  as  hereinafter  mentioned,  the  said  defendant 
was,  and  since  hitherto  has  been,  a  common  carrier  of  goods  for  hire  from 

to  2.  That  the  said  plaintiff,  to  wit,  on ,  at , 

delivered  to   the   said   defendant,   as   such   common   carrier,   certain   goods, 

to  wit,    ,  of  him,  the  said  plaintiff,   of  great   value,  to  wit,  of  the 

value  of   dollars,  and  the  said  defendant,  as  such  common  carrier, 

then  and  there   accepted   and  received  the   said  goods,   to  be  safely  and 

securely  carried  by  the  said  defendant  from   ,  aforesaid,  to   , 

aforesaid,  and,  at  the  place  last  aforesaid,  delivered  to  the  said  plaintiff 
in  as  good  condition  as  when  received,  for  reward  to  the  said  defendant 
in    that   behalf.     3.  That   thereupon   it   became   and    was   the   duty   of  the 

said   defendant  safely  and   securely   to  carry  the   said   goods  from    

aforesaid  to    aforesaid  and  there  to   deliver  the   same   to  the   said 

plaintiff  in  as  good  condition  as  when  received.  4.  That  the  said  defend- 
ant did  not  safely  or  securely  carry  the  said  goods  from   to   

aforesaid,  and,  at  such  last-named  place,  deliver  the  same  to  the  said 
plaintiff  in  as  good  condition  as  when  received,  but  so  carelessly,  negli- 
gently   and   unskillfully    conducted    himself    in    the   premises   that   thereby 

the  said  goods  became  and  were  afterwards,  to  wit,  on ,  at , 

greatly   damaged   and   deteriorated   in   value,   to   wit,    dollars,   and 

became  and  were  of  little  or  no  use  or  value  to  the  said  plaintiff. 

Form  of  Count  in  Case  Against  Common  Carrier  for  Losing  Goods 

The  plaintiff  says: 

1.  That  before  and  at  the  time  of  the  delivery  of  the  goods  and  chat- 
tels, as  hereinafter  next  mentioned,  to  the  said  defendant,  he,  the  said 
defendant,  was,  and  thence  hitherto  has  been,  a  common  carrier  of  goods 

for   hire,   to   wit,   from    to    2.  That   the   said   plaintiff,   to 

wit,  on   ,  at    ,  caused  to  be  delivered  to  the  said  defendant, 

as  such  common  carrier,  and  the  said  defendant,  as  such  common  carrier, 


Carriers  253 

received  and  accepted  from  the  said  plaintiff  certain  goods  and  chattels, 
to  wit    (here   describe   the   goods   by   parcels   and  contents),   of   the   said 

plaintiff,   of    great   value,   to   wit,    of   the   value   of    dollars,   upon 

the  terms  that  the  said  defendant  should  safely  carry  the  said  goods  from 

,  aforesaid,  to   ,  aforesaid,  and  there  safely  deliver  the  same 

to  the  said  plaintiff,  for  certain  reasonable  reward  to  the  said  defendant 
in   that   behalf.     3.  That  thereupon   it   then   and   there  became  the   duty 

of  the  said  defendant  safely  to  carry  the  said  goods  from aforesaid 

to    aforesaid,  and  there  safely  deliver  the  said  goods  to  the  said 

plaintiff.  4.  That  the  said  defendant  did  not  safely  carry  the  said  goods 
from  aforesaid  to  aforesaid,  nor,  to  wit,  at  afore- 
said, safely  deliver  the  same  to  the  said  plaintiff,  but,  on  the  contrary 
thereof,  carelessly  and  negligently  conducted  himself  in  the  premises.  5. 
That,  through  the  carelessness,  negligence  and  default  of  the  said  defend- 
ant in  the  premises,  the  said  goods,  to  wit,  on  the  day  and  year  afore- 
said, at   ,  aforesaid,  were  wholly  lost  to  the  said  plaintiff. 

Porm  of  Count  Against  the  Owner  of  a  Steamboat  for  Negligence 

The  plaintiff  says: 

1.  That  the  said  defendant,  before  and  at  the  time  of  committing  the 
grievances   next   hereinafter   mentioned,   was   the   proprietor   of   a    certain 

steamboat,  moved  and  propelled  by  steam,  called  the  " , "  by  the 

said  defendant  used  in  carrying  passengers  and  goods,  wares  and  mer- 
chandise on  the  waters  of   ,  from    to   ,  and  to  divers 

other  places.     2.  That  the  said  defendant,  on    ,  at   ,  received 

upon  the   said   steamboat    ,  the  wife,  and    and    ,  the 

children,  of  the  said  plaintiff,  as  passengers  thereon  from aforesaid 

to  aforesaid,  for  certain  fare  and  reward  to  him,  the  said  de- 
fendant. 3.  Tliat  thereupon  it  then  and  there  became  the  duty  of  the 
said  defendant  carefully,  safely  and  securely  to  carry  the  said  wife  and 
children  of  the  said  plaintiff,  in  the  said  steamboat,  from  afore- 
said to    aforesaid.     4.  That  the  said  defendant  conducted  himself 

carelessly,  negligently  and  unskillfully  in  the  premises.  5.  That  by  and 
through  such  carelessness,  negligence  and  unskillfulness  of  himself  and 
his  servants,  in  generating  the  steam  for  propelling  the  said  steamboat, 
and  in  managing,  regulating  and  securing  the  same,  while  the  said  steam- 
boat was   carrying  the   said  wife   and   children   of  the   said   plaintiff,  as 

aforesaid,  and  before  the   arrival  thereof  at    ,   to   wit,  on    , 

at    ,  and  while  the  said  plaintiff   and  his  said  wife   and   children 

were  in  the  exercise  of  due  care,  divers  large  quantities  of  steam  escaped 
from  the  boiler  and  apparatus  wherein  the  same  was  generated  on  the 
said  steamboat  and  drove  into  and  fell  upon  the  said  wife  and  children 
of  the  said  plaintiff.  6.  That,  by  means  thereof,  the  said  wife  and  chil- 
dren of  the  said  plaintiff  were  respectively  grijitly  hurt,  burned  and 
scalded,  and  became  sick,  sore,  lame  and  disordered.  7.  Tliat  the  said 
wife  of  the  said  plaintiff  and  the  said  and  have  each  con- 
tinued so  sick,  sore,  lame  and  disordered  for  a  long  space  of  time,  to  wit, 
thence  hitherto,  to  wit,   at    8.  That,   during  all   of  th.ii   time   the 


254  Carriers 

said   plaintiff    has   been    deprived   of   the    aid,   comfort    and   assistance   of 

his  said  wife  and  of  the  said   and    ,  in  the  management  of 

his  domestic   affairs,   and  has  been   obliged   to   incur   and   did   incur   great 

expense,   to   wit,   the   sum   of    dollars,   in   endeavoring   to   cure   his 

said  wife  and  children  of  their  said  sickness,  soreness,  lameness  and  dis- 
order. 9.  That  the  said  plaintiff  was  also  thereby  prevented  from  attend- 
ing to  his  necessary  affairs  and  business,  to  wit,  for    months  then 

next  ensuing. 

CASE,  ACTION  ON 

§  1.  Effect    of    Judicature    Act. 

§  2.  Nature  of  action  at  common  law. 

§  3.  History  of  action. 

^  4.  When  case  was  proper  form  of  action. 

§  5.  Concurrence  of  wrong  and  injury. 

Cross-Be fercnces:  Actions;  Trespass  on  Lands;  Trover  and  Conver- 
sion ;  Libel  and  Slander  ;  Malicious  Prosecution  ;   Negligence. 

§  1.  Effect  of  Judicature  Act. 

Under  the  Judicature  Act,  outside  of  replevin  and 
ejectment,  there  is  but  one  form  of  action  based  on  a 
tort,  unless  the  tort  is  waived,  and  that  is  denominated 
an  action  of  trespass  on  the  case.^  Case,  in  addition  to 
its  original  scope,  takes  the  place  of  trespass  and  trover, 
but  the  former  provisions  permitting  assumpsit  to  be 
brought  in  certain  cases  of  fraud,  trespass,  conversion, 
etc.,  are  not  repealed.^  The  result  is  that,  outside  of  re- 
plevin and  ejectment  and  certain  cases  when  assumpsit 
may  be  brought,  there  is  but  one  form  of  action  ex  delicto. 
However,  as  has  been  pointed  out,  there  seems  to  be  no 
good  reason  why  the  action  of  trespass  on  the  case, — with 
its  name  retained, — should  have  been  preserved,  instead 
of  abolishing  all  forms  of  action  ex  delicto  except  re- 
plevin and  ejectment.^  For  instance,  in  an  action  for 
conversion,  where  the  form  of  action  would  formerly  have 
been  trover,  the  declaration  even  now  must  either  fol- 

1  See  Actions,  3  See  Actions. 

2  See  Assumpsit. 


§  3  Case,  Action  on  255 

low  the  old  form  of  declarations  in  trover  or  else  con- 
tain such  information  as  shall  reasonably  inform  defend- 
ant of  the  nature  of  the  case  he  is  called  upon  to  de- 
fend.* 

It  will  not  be  amiss,  however,  to  briefly  consider  the 
nature  of  the  action  of  trespass  on  the  case  as  it  existed 
prior  to  the  Judicature  Act. 

§  2.  Nature  of  action  at  common  law. 

At  common  law,  the  action  of  trespass  on  the  case 
was  the  appropriate  action  for  all  personal  wrongs  and 
injuries  without  force,  that  is,  injuries  not  in  legal  con- 
templation forcible,  or  not  direct  and  immediate  on  the 
act  done,  but  only  consequential.  In  its  most  compre- 
hensive signification,  it  included  assumpsit  as  well  as  an 
action  in  form  ex  delicto,  and  it  has,  therefore,  been  said 
to  lie  where  a  party  sues  for  damages  for  any  wrong  or 
cause  of  complaint  to  which  covenant  or  trespass  will 
not  apply.^  At  the  present  time,  however,  assumpsit  is 
not  regarded  as  an  action  ex  delicto. 

§  3.  — -  History  of  action. 

The  action  of  trespass  on  the  case  is  so  called  because 
the  plaintiff's  whole  case  or  cause  of  complaint  was  set 
forth  at  length  in  the  original  writ.^  At  common  law, 
if  none  of  the  ancient  forms  of  writs  collected  and  pre- 
served in  the  register  of  writs  was  adapted  to  the  nature 
of  the  plaintiff's  case,  he  was  nevertheless  at  liberty  to 
bring  a  special  action  upon  his  own  case,  to  accord  with 
which  new  forms  of  writs  were  framed  and  termed 
''brevia  magistralia,"  from  the  circumstance  that  they 
were  framed  by  the  officers  of  the  court  of  chancery.  But 
as  these  officers  were  found  reluctant  to  perform  this 
duty,  or  doubted  their  authority  in  new  cases  to  frame 

4  See  Pleading.  «3  Cooley's  Bl.   Coiiim.    122. 

6  1  Chit.  PI.  140;  Steph.  PI.  48. 


256  Case,  Action  on  §  3 

the  proper  remedy,  parliament  enacted  the  statute  of 
Westminster  II,  providing  * '  that,  as  often  as  it  shall  hap- 
pen in  the  chancery  that  in  one  case  a  writ  is  found,  and 
in  a  like  case,  falling  under  the  same  right,  and  requir- 
ing like  remedy,  no  writ  is  to  be  found,  the  clerks  of  the 
chancery  shall  agree  in  making  a  writ,  or  adjourn  the 
complaint  till  the  next  parliament,  and  write  the  cases  in 
which  they  cannot  agree  and  refer  them  to  the  next 
parliament;  and,  by  consent  of  men  learned  in  the  law,  a 
writ  shall  be  made,  lest  it  might  happen  after  that  the 
court  should  long  time  fail  to  minister  justice  unto  com- 
plainants." "^ 

This  statute,  it  will  be  observed,  while  it  gives  to  the 
officers  of  the  chancery  the  power  of  framing  new  writs 
in  like  cases  with  those  that  formerly  existed  and  en- 
joins the  exercise  of  that  power,  does  not  give  or  recog- 
nize any  right  to  frame  such  instruments  in  cases  en- 
tirely new.  It  seems,  therefore,  that,  for  any  case  of 
that  description,  no  writ  could  be  lawfully  issued  except 
by  authority  of  parliament.  But,  on  the  other  hand,  new 
writs  were  copiously  produced  according  to  the  principle 
sanctioned  by  this  act,  i.  e.,  in  like  cases  or  upon  the 
analogy  of  actions  previously  existing.^  The  injuries 
for  which  new  writs  were  thus  invented  were  considered 
as  bearing  a  certain  analogy  to  a  trespass,  and  the  writs 
accordingly  received  the  appellation  of  ''writs  of  tres- 
pass on  the  case,"  as  being  founded  upon  the  particular 
circumstances  of  the  case  requiring  a  remedy,  and  to 
distinguish  them  from  the  old  writ  of  trespass.  The  in- 
juries themselves  which  were  the  subject  of  such  writs 
are  not  called  trespasses,  but  have  the  general  name  of 
torts,  wrongs  or  grievances.     The  writs  of  trespass  on 

'1   Chit.   PI.   107;    Steph.   PI.   42.  time  to  time,  by  the  express  author- 

This  statute  was  enacted  in  the  thir-  ity  of  parliament.     Large  accessions 

teenth  year  of  the  reig^Ti  of  Edward  were   made  to   the   ancient  stock   of 

I.  l)revia    originalia.      Steph.    PI.   42. 

8  Other  writs  were  also  added  from 


§  4  Case,  Action  on  257 

the  case,  though  varying  in  each  particular  case  accord- 
ing to  the  nature  of  it,  began  nevertheless  to  be  looked 
upon  collectively^  as  a  single  new  form  of  action,  which, 
by  the  name  of  '^ trespass  on  the  case,"  took  its  place 
by  the  side  of  the  more  ancient  actions  of  covenant,  debt 
and  trespass.® 

§  4.  When  case  was  proper  form  of  action. 

The  action  of  trespass  on  the  case  comprised  all  actions 
for  torts  or  injuries  effected  without  force,  and  for  torts 
and  injuries  arising  from  the  forcible  or  violent  act  of 
another  when  the  tort  or  injury  was  not  the  immediate 
effect  of  the  force,  but  merely  a  consequence  of  it.^" 
Notwithstanding  the  injury  was  an  immediate  effect,  yet 
if  it  was  not  willful,  but  occasioned  by  the  carelessness 
and  negligence  of  the  defendant,  the  plaintiff  was  at  lib- 
erty to  bring  an  action  on  the  case.  If  it  were  willful, 
the  common  law  required  trespass  and  not  case  to  be 
brought;  but  this  rule  was  soon  very  much  changed  by 
statute,  so  that  it,  in  general,  was  immaterial,  so  far  as 
regards  the  form  of  action,  whether  the  injury  was  will- 
ful or  not." 

Case  was  the  proper  remedy  for  any  injury  to  the  ab- 
solute rights  of  persons  not  immediate,  but  conse- 
quential, as  for  keeping  mischievous  animals,  having  no- 
tice of  their  propensity,  or  for  special  damage  arising 
from  a  public  nuisance,  for  malicious  prosecutions,  libels, 
slanders  and  seductions, ^^  for  injuries  to  the  relative 
rights  of  persons,  as  for  seducing  or  harboring  wives, 
enticing  away  or  harboring  apprentices,^^  for  injuries  to 

9Steph.    PI.    49;    3    Cooley's    Bl.  v    Smith,  39  Mich.  222   (as  to  mali- 

Comm.  50,  51.  cious  prosecution)  ;    Stoudt  v.  Shep- 

10  Tiff.  Jus.  Guide  763;  Barry  v.  herd,  73  Mich.  588;  Weiher  v.  Mey- 
Pcterson,  48  Mich.  263;  Wyant  v.  ershain,  50  Mich.  602;  Watson  v. 
Grouse,  127  Mich.  158.  Watson,  49  Mich.  540. 

11  Tiff.    .Tus.   Guide   763.  13  1   Chit.  PI.  150. 

12  1  Cliit.  PI.  149,  150;   Hamilton 

1  Abbott— 17 


258  Case,  Action  on  §  4 

personal  property  not  committed  with  force,  or  not  im- 
mediate, or  where  the  plaintiff's  right  thereto  was  in 
reversion.  It  lay  against  attorneys  or  other  agents  for 
neglect  or  other  breach  of  duty  or  misfeasance  in  the 
conduct  of  a  cause  or  other  business,  though  it  was  more 
usual  to  declare  against  them  in  assumpsit.  And  al- 
though assumpsit  was  and  is  a  common  remedy  for 
neglect  or  breach  of  duty  against  carriers,  wharfingers, 
innkeepers,  warehousemen  and  other  bailees  of  personal 
l)roperty,  whose  liability  is  founded  on  the  common  law 
as  well  as  on  contract,  yet  it  is  clear  that  they  are  also 
liable  in  case  for  an  injury  resulting  from  their  neglect 
or  breach  of  duty  in  the  course  of  their  employment  or 
business."  Case  is  the  proper  action  for  waste;  ^^  for 
damages  to  property  communicated  by  infection;^®  for 
damages  to  one's  vehicle  from  stones  deposited  in  the 
highway,  through  which  the  plaintiff  had  to  drive ;  "  for 
injuries  in  a  collision  caused  by  defendant's  neglect.^* 
^\jid,  indeed,  whenever  no  specific  remedy  is  given  for 
a  wrongful  injury,  a  remedy  may  generally  be  had  by 
special  action  on  the  case,  because,  whenever  the  com- 
mon law  gives  a  right  or  prohibits  an  injury,  it  also  gives 
a  remedy  by  action.^® 

§  5.  Concurrence  of  wrong  and  injury. 

Injury  alone  would  not  support  an  action  on  the  case; 
a  concurrence  of  injury  and  wrong  was  necessary.  The 
wrong  might  consist  in  an  act  unlawful  in  itself.  But  if 
a  man  does  an  act  that  is  not  unlawful  in  itself,  he  can- 
not be  held  responsible  for  any  resulting  injury,  unless 
he  does  it  at  a  time  or  in  a  manner  or  under  circum- 
stances which  render  him  chargeable  with  a  want  of 
proper  regard  for  the  rights  of  others.     In  such  a  case, 

14  1  Chit.  PI.  151.  18  Bradford  v.  Ball,  38  Mich.  673. 

16  Lee   V.   Payne,  4   Mich.   106.  19  Stout   v.   Keyes,   2   Doug.   184 ; 

16  Eaton  V.  Winnie,  20  Mich.  156.  3  Cooley's  Bl.   Comm.   122;   Birkley 

17  Green  v.  Belitz,  34  Mich.  512.  v.  Presgrave,  1  East  226. 


§  1  Case  Made  259 

the  negligence  imputed  to  him  constitutes  the  wrong, 
and  he  is  accountable  to  persons  injured,  not  because 
the  damage  has  resulted  from  his  doing  the  act,  but  be- 
cause its  being  done  negligently  or  without  due  care  has 
resulted  in  injury.  If  the  act  was  not  wrongful  in  itself, 
the  wrong  must  necessarily  be  sought  for  in  the  time 
or  manner  or  circumstances  under  which  it  was  per- 
formed; and  injury  does  not  prove  the  wrong,  but  only 
makes  out  the  case  for  redress  after  the  wrong  is  estab- 
lished.^" 

CASE  MADE 

I.  Before  Judgment  * 
§    1.  Procedure. 

§    2.  Removal  to   suiireuie  court. 

II.  After  Judgment 
§    3.  Scope  of  as  mode  of  review. 

§    4.  Election  between  case  made  and  writ  of  error. 

§    5.  Time  for  making  and  settling  ease. 

§    6.  Contents. 

§    7.  Practice  in  settling  case. 

§    8.  Eemoval  of  case  made  to  supreme  court. 

§    9.  Notice  of  filing. 

§  10.  Limitation  of  time  for  removing  case  made. 

§  11.  Assignments  of  error. 

§  12.  Notice  of  hearing. 

§  13.  Procuring  cause  to  be  placed  on  calendar. 

§  14.  What  will  be  reviewed. 

§  15.  Judgment  of  supreme  court. 

§  16.  Costs. 

S  17.  Motion  to  dismiss. 

Cross-Befcrences:    Error,  Writ  of;  Bill  of  Exceptions;  Assignments 
OF  Error;  Supreme  Court. 

I.  Before  Judgment 

§  1.  Procedure. 

The  parties  to  a  civil  action  pending  in  any  circuit 
court,  or  to  any  question  of  difforonco  which  might  be 

20  Macomber  v.  Nichols,  34  Mich. 


260  Case  Made  §  1 

the  subject  of  a  civil  action,  without  bringing  suit,  may 
agree  upon  a  case  containing  the  facts  of  the  matter  in 
controversy  and  submit  it  to  the  court;  and  the  court 
will  thereupon  hear  and  determine  the  cause  and  render 
judgment  thereon  as  in  other  cases.  If  such  case  be 
agreed  upon  without  action,  it  must  appear  by  affidavit 
that  the  controversy  is  real  and  the  proceeding  in  good 
faith  to  determine  the  rights  of  the  parties.* 

The  case  agreed  upon  should  be  signed  by  the  parties 
or  their  attorneys  and  filed  in  the  court,  so  that  it  can, 
if  occasion  require,  be  certified  to  the  supreme  court,  and 
should  distinctly  shoAV  upon  its  face  that  it  is  a  case 
agreed  upon  before  judgment.^  The  case  is  not  a  mere 
stipulation  concerning  evidence  from  Avhich  the  court 
may  draw  inferences  of  fact  or  which  may  be  supple- 
mented by  evidence  of  further  facts,  but  operates  rather 
as  a  special  verdict  or  finding,  and  should,  therefore, 
contain  all  of  the  material  facts.' 

§  2.  Removal  to  supreme  court. 

If  either  party  to  a  case  agreed  upon  before  judgment 
wishes  to  have  the  cause  removed  to  the  supreme  court 
after  judgment  thereon,  the  clerk  is  required  to  certify 
the  case  agreed  upon  and  the  judgment  thereon  to  the 
supreme  court;  whereupon  that  court  will  be  possessed 
of  the  cause  and  may  give  such  judgment  and  award 
such  costs  as  justice  may  require.*  No  bill  of  exceptions 
or  writ  of  error  is  necessary.  The  case  goes  to  the 
supreme  court  on  the  certificate  of  the  clerk,  and  the 
only  question  before  that  court  is  whether  the  facts  em- 
bodied in  the  case  sustain  the  judgment. 

1  Jud.  Act,  ch.  6,  §  1,  subd.  7 ;  Mich.  279 ;  Cofrode  v.  Gartner,  79 
Comp.  Laws  1915,  §  12299,  subd.  7.  Mich.  332. 

2  Farrand  V.  Bentley,  6  Mich.  281.  4  Jud.    Act,   ch.    50,    §17;    Comp. 

3  Goodrich  v.  City  of  Detroit,  12  Laws  1915,  §  13752. 


§  4  Case  Made  261 

II.  After  Judgment 

§  3.  Scope  of  as  mode  of  review. 

Any  ruling,  order  or  finding  of  the  circuit  court  or 
circuit  judge  or  judgment  of  the  circuit  court,  review- 
able by  writ  of  error,  may,  at  the  option  of  the  complain- 
ing party,  be  reviewed  by  case  made.^  The  practice  of 
resorting  to  case  made  is  quite  as  appropriate  as  that 
by  writ  of  error.®  The  office  of  a  case  made  is  no  broader 
than  that  of  a  writ  of  error  and  bill  of  exceptions,  but 
it  is  just  as  broad,'  and,  therefore,  as  it  is  elsewhere  ex- 
plained ^  in  what  cases  a  writ  of  error  will  lie  and  in 
what  it  will  not,  it  will  be  unnecessary  to  repeat  in  this 
place  what  is  said  in  that  connection. 

Case  made,  like  a  writ  of  eiTor,  may  be  resorted  to  as 
well  when  the  case  was  tried  by  the  court  below  with 
a  jury  as  when  it  was  tried  by  the  court  without  a  jury. 
The  sole  object  is  to  do  away  with  the  necessity  of  a  bill 
of  exceptions  and  writ  of  error,  by  permitting  the  par- 
ties to  bring  before  the  supreme  court  in  a  case  to  be 
made  after  trial  all  the  questions  arising  thereon  that 
could  properly  be  embodied  in  a  bill  of  exceptions.^  But 
a  case  made  should  point  out  the  errors  relied  upon  as 
clearly  as  a  bill  of  exceptions, ^°  and  exceptions  are  just 
as  necessary  when  a  review  is  sought  upon  a  case  made 
as  upon  a  writ  of  error.^^ 

§  4.  Election  between  case  made  and  writ  of  error. 

A  party  has  a  right  of  election  Avhether  he  will  bring 
bis  case  to  the  supreme  court  by  a  writ  of  error  or  on  a 

6Cir.    Ct.   Kule   67.  9  Bcosoii    v.    Hollistor,    11    Mich. 

6  Wheclor  v.  Wilkins,  19  Mich.  78;  193. 

Soper     V.     Fray,     37     Mich.     236;  10  Tuxbury    v.    French,    39    Mich. 

Schmidt    v.    Miller,    22    Mich.    278;  190;     Probasco    v.    Cook,    39    Mich. 

Drake     v.     International     Harvester  714. 

Co.,  150  Mich.  561.  11  Turner  v.  City  of  Grand  Eajiids, 

TEarle    v.    Westchester    Fire    Ins.  20    Mich.    390;    Wcrtin   v.    Crocker, 

Co.,  29  Mich.  414.  47  Mich.  642. 

8  See  Error,  Writ  of. 


262  Case  Made  §  4 

case  made,  but  he  cannot  do  both,  and,  when  he  has 
made  his  election  to  proceed  by  writ  of  error,  he  is  bomid 
thereby  and  cannot  resort  to  the  other.  By  procuring 
a  bill  of  exceptions  to  be  settled  and  filing  the  same,  he 
makes  his  election  to  pursue  that  method  and  is  not  en- 
titled to  settle  a  case  made  afterwards;  ^^  and,  converse- 
ly if  a  party  has  settled  a  case  made,  he  waives  it  by 
suing  out  a  writ  of  error." 

§  5.  Time  for  making  and  settling  case. 

A  party  is  entitled  to  the  same  time  to  make  and  settle 
a  case,  and  the  court  may  extend  the  time  for  so  doing 
in  the  same  manner  and  within  the  same  limitations,  as 
in  the  case  of  a  bill  of  exceptions.^*  A  stipulation  be- 
tween the  parties  for  an  extension  of  time  to  settle  a  case 
made  is  binding  upon  the  court." 

§  6.  Contents. 

No  more  of  the  testimony,  proceedings  or  record  in  a 
cause  should  be  set  forth  in  a  case  made  than  is  neces- 
sary to  present  the  questions  of  law  to  be  reviewed.^^ 
This  should  be  done  in  narrative  form,  unless  the  trial 
court  deems  it  necessary  to  a  full  understanding  of  the 
questions  involved  that  the  testimony  be  set  out  in  full 
or  in  part  by  question  and  answer,  in  which  case  the  trial 
court  should  so  certify."  A  case  made  ought  to  point 
out  the  errors  relied  upon  as  distinctly  as  a  bill  of  ex- 
ceptions is  expected  to.^^  It  is  as  necessary  that  a  party 
should  have  taken  exception  or  objection  to  the  ruling 
or  action  of  the  court  when  a  review  is  sought  on  a  case 

12  Richardson  v.  Yawkey,  9  Mich.  17  Cir.  Ct.  Rule  66,  §  8 ;   Andrews 

139.  V.    Lavery,    159    Mich.    26;     South- 

18  Hatch  V.  White,  18  Mich.  194.  wick  v.   Wayne   Circuit  Judge,   173 

14  Cir.  Ct.  Rule  67.     See  Bill  of  Mich.  472. 

Exceptions.  18  Tuxbury    v.    French,    39    Mich. 

IB  Hartley  v.  Miller,  164  Mich.  47.  190. 

16  Cir.  Ct.  Rule  67. 


§  6  Case  Made  263 

made  as  it  is  in  the  case  of  a  bill  of  exceptions,  and  it 
is  as  necessary  that  a  case  made  should  show  this  to  have 
been  done  as  it  is  that  a  bill  of  exceptions  should  show 
it." 

A  case  made  must  show  that  it  was  settled  and  signed 
by  the  trial  judge  for  review  by  the  supreme  court ;  ^^ 
but,  where  the  case  is  duly  signed  by  the  judge  and  pur- 
ports to  have  been  settled  before  him,  it  will  be  pre- 
sumed that  all  the  steps  prerequisite  to  the  signing  were 
regularly  taken.  It  is  enough  if  the  want  of  them  does 
not  appear.^^ 

Form  of  Case  Made  After  Judgment 
(Title  of  court  and  cause.) 

This  was  an  action  of  (state  what).  The  declaration  alleged  that  (state 
what  briefly),  and  the  plea  was   (state  what  briefly). 

The  said  issue  came  on  to  be  tried  in  said  court  before  the  Honorable 

J.  S.,  circuit  judge,  at  a  term  of  said  court  held  on    ,  at    , 

in  the  county  of   aforesaid,  and  was  tried  with  a  jury. 

And  upon  the  trial  of  the  said  issue,  the  plaintiff,  to  maintain  the  said 
issue  upon  his  part,  introduced  as  a  witness  W.  S.,  who  testified  as  fol- 
lows: (State  such  parts  of  the  testimony  as  are  necessary  to  present 
the  questions  of  law  raised  by  the  exceptions  and  assignments  of  error. 
It  must  be  in  narrative  form,  unless  the  trial  court  determines  it  neces- 
sary to  a  full  understanding  of  the  questions  of  law  that  it  be  set  out, 
in  whole  or  in  part,  by  questions  and  answers,  in  which  case  the  trial 
court  must  so  certify  in  writing.  Any  objections  made  and  exceptions 
taken  upon  the  introduction  of  the  evidence  must  be  made  to  appear.) 

And  the  said  defendant,  to  maintain  the  said  issue  on  his  part,  intro- 
duced as  a  witness  J.  B.,  who  testified  as  follows:  (State  the  testimony 
for  the  defendant  in  the  same  manner  as  above  explained  in  relation  to 
the  testimony  of  the  plaintiff.) 

The  court  thereupon  charged  the  jury  as  follows:  (Here  state  such 
parts  of  the  charge  as  are  necessary  to  present  the  questions  of  law 
raised.)  Thereupon  the  jury  retired,  under  the  charge  of  an  officer,  to 
consider  their  verdict,  and,  after  being  absent  for  a  time,  returned  into 
court   and   rendered   the   following  verdict:     (State   the   substance   of  the 

19  Turner  V.  City  of  Grand  Kapids,  ton     v.     Parrott,     46     Mich.     432; 

20    Mich.    390;    Wertin    v.    Crocker,  Hedges  v.  Hibbard,  46  Mich.  551. 

47    Mich.    642;    Wilkinson    v.    Earl,  20  Gard  v.  Stevens,  12  Mich.  9. 

39  Mich.  626;   McEannon  v.  Atkins,  21  Sallee  v.  Ireland,  9  Mich.  154. 
60    Mich,    418.      See    also    Chatter- 


264  Case  Made  §  6 

verdict.)      And  thoreiipoii  the  fourt  rendered  a  jud^ient  that   (here  state 
the  judgment). 

(The  assignments  of  error  must  accomjjany  the  case  made  at  the  time 
of  its  service  and  at  the  time  of  its  settlement,  and  may  be  inserted  at 
this  point.) 

Signed  and  settled,  as  a  case  made   after  judgment,  for  review  in  the 

supreme  court,  this   day  of   ,  A.  D 

J.  S., 
Circuit   Judge. 

§  7.  Practice  in  settling  case. 

The  rule  provides  that  a  case  made  shall  be  settled  in 
the  time  and  manner,  and  have  attached  thereto  a  state- 
ment of  errors,  the  same  as  bills  of  exceptions,  and  the 
practice  in  settling  and  filing  cases  made  shall  be  the 
same  as  that  in  settling  bills  of  exceptions. ^^  Copies  or 
abstracts  of  the  material  pleadings,  docmnents,  orders, 
verdict  and  judgment  may  be  attached  to  the  case  made 
for  the  purpose  of  forming  the  record  for  the  supreme 
court  in  the  same  manner  and  with  the  same  effect  as  in 
the  case  of  a  bill  of  exceptions. ^^ 

§  8.  Removal  of  case  made  to  supreme  court. 

When  a  case  made  has  been  settled  and  filed  in  the 
circuit  court,  either  party  has  the  right  to  cause  it  to  be 
certified  to  the  supreme  court.^*  It  is  the  duty  of  the 
clerk  of  the  circuit  court,  at  the  request  of  either  party, 
to  certify  the  case  made  to  the  supreme  court,  and  this 
is  the  only  way  in  which  the  case  made  can  be  so  re- 
moved. The  certificate  of  the  clerk  is  essential  to  give 
the  court  jurisdiction  to  hear  the  cause,  and  the  lack  or 
insufficiency  of  the  certificate  is  a  defect  which  cannot 
be  cured  by  stipulation  of  counsel.^^ 

22  Cir.  Ct.  Rule  67,  and  see  Bill  24  Robertson  v.  Little,  10  Mich. 
OF  Exceptions.                                           371;  Van  Blareom  v.  Aetna  Ins.  Co., 

Dismissal  for  lack   of  assignment  6  Mich.  299. 
of  errors,  etc.,  see  McKinnon  v.  At-  26  City  of  Grand  Rapids  v.  Whit- 
kins,  60  Mich.  418.  tlesey,   32   Mich.   192. 

23  Cir.  Ct.  Rule  68. 


§  9  Case  Made  265 

Form  of  Certificate  of  Clerk  on  Case  Made 
(Title  of  court  and  cause.) 
To  the  Supreme  Court  of  the  State  of  Michigan: 

I,  W.  S.,  clerk  of  the  circuit  court  for  the  county  of   ,  do  hereby 

certify  that  the  foregoing  case,  made  and  settled  in  this  cause,  was  filed 

with   the   clerk   of   the   said   circuit   court   on   the    day    of    , 

A.   D ;    and  I   do  '  hereby   certify   the   same   to   the   supreme   court, 

according  to  the  statute  in  such  case  made  and  provided. 

In   testimony   whereof,   I   have   hereunto   set   my   hand,   and   affixed   the 

seal  of  said  circuit  court,  this   day  of   ,  A.  D 

W.  S., 
Clerk. 

§  9.  Notice  of  filing. 

Cases  made  are  required  to  be  filed  with  the  clerk  of 
the  supreme  court,  and  the  party  removing  the  case  to 
that  court  is  required  to  cause  notice  of  such  filing  to 
be  given  to  the  adverse  party  or  his  attorney  in  the  court 
below  within  ten  days  after  such  filing  and  to  file  proof 
of  such  service  with  the  clerk  of  the  supreme  court. ^^ 

Form  of  Notice  of  Filing  Case  Made  in  Supreme  Court 
State  of  Michigan. 

The  Supreme  Court. 
A.  B., 

Plaintiff  and  Apj>cllee, 

vs.  y 

C.  D., 

Defendant  and  Appellant.      j 

Sir:— 

You  will  please  to  take  notice  that  the  case  made  and  settled  in  this 

cause,  and  the  assignments  of  error  thereto  attached,  heretofore  filed  with 

the  Clerk  of  the  Circuit  Court  for  the   County  of    ,  has  been  this 

day  certified  to  and  filed  in  the  said  Supreme  Court  by  the  clerk  of  said 

circuit  court. 

Dated,  etc.  ^-  . 

a^aucu,      V.  lours,  etc., 

K.  L., 

Attorney   for  Defendant 
and  Appellant. 
Business  address: 

,  Mich. 

To  J.  K.,  Attorney  for  Plaintiff  and  Appellee. 

26  Sup.  Ct.  Rule  17. 


266  Case  Made  §  10 

§  10.  Limitation  of  time  for  removing  case  made. 

By  analogy  to  the  statute  limiting  the  time  for  bring- 
ing writs  of  error  to  one  year,  the  party  who,  for  that 
length  of  time,  neglects  to  cause  the  case  he  has  pro- 
cured to  be  settled  to  be  certified  to  the  supreme  court 
will  be  deemed  to  have  abandoned  it.^''  Within  the  limits 
within  which  the  court  might  extend  the  time  for  set- 
tling and  filing  a  case  made,  the  parties  may  do  so  by 
stipulation.^' 

§  11.  Assignments  of  error. 

As  a  case  made  is  required,  at  the  time  of  its  settle- 
ment, to  have  attached  thereto  a  statement  of  errors  the 
same  as  bills  of  exceptions,^^  no  further  or  other  state- 
ment or  assignment  of  errors  is  necessary  after  the  case 
reaches  the  supreme  court. 

§  12.  Notice  of  hearing. 

After  the  filing  in  the  supreme  court  of  a  case  made, 
either  party  may  notice  the  cause  for  hearing.  Such  no- 
tice must  be  given  at  least  thirty  days  before  the  first 
day  of  the  term  at  which  argument  is  desired.^" 

§  13.  Procuring  cause  to  be  placed  on  calendar. 

Like  writs  of  error,  cases  made  are  calendar  causes, 
and  to  be  heard  at  any  term  must  be  placed  on  the  cal- 
endar for  that  term.'^  The  party  noticing  a  cause  for 
hearing  must,  at  least  twenty  days  before  the  first  day 
of  the  term  for  which  it  is  noticed  for  hearing,  give  no- 
tice to  the  clerk  to  place  the  cause  on  the  calendar  for 
the  term ;  but  no  cause  can  be  entered  on  the  calendar  by 

27  Van  Blarcom  v.  Aetna  Ins.  Co.,  29  Cir.  Ct.  Rule  67 ;  McKiunon  v. 
6  Mich.  299;  Ackley  v.  Sager,  30  Atkins,  60  Mich.  418.  See  gener- 
Mich.  264 ;  Jud.  Act,  ch.  50,  §  6 ;  ally  Bill  of  Exceptions  ;  Assign- 
Comp.  Laws  1915,  §  13741.  ment  of  Errors. 

28  Hartley  v.  Miller,  164  Mich.  47 ;  30  Sup.  Ct.  Eule  34. 
IN'ople  V.  Kalamazoo  Circuit  Judge,  31  Sup.  Ct.  Rule  43. 
lif)  Mioh.  128. 


§  14  Case  Made  -267 

the  clerk  until  the  case  made  has  been  filed  in  the 
supreme  court,  nor  without  the  notice  to  the  clerk  to 
place  it  on  the  calendar.^'' 

§14.  What  will  be  reviewed. 

Any  ruling,  order  or  finding  of  the  court  or  judge  or 
judgment  of  the  court  reviewable  by  writ  of  error  may, 
at  the  option  of  the  complaining  party,  be  reviewed  on 
a  case  made.^^ 

The  office  of  a  case  made  is  no  broader  than  that  of  a 
writ  of  error  and  bill  of  exceptions,  and  it  can  be  car- 
ried no  further  than  to  bring  under  review  such  actual 
rulings,  involving  questions  of  law,  as  might  be  pre- 
sented by  bill  of  exceptions  and  writ  of  error. ^*  No 
question  can  be  reviewed  in  the  appellate  court  upon 
case  made,  unless  it  appears  that  the  trial  court  passed 
upon  it.^^ 

Rulings  on  the  admission  of  evidence  can  be  reviewed 
on  case  made  as  well  as  on  bill  of  exceptions;®^  and  a 
case  may  be  made  containing  the  record  or  a  statement 
of  so  much  of  it  as  may  be  material  to  the  questions  to 
be  raised,  and,  when  the  case  is  so  made,  any  question 
arising  upon  the  record,*  as  stated  or  set  forth  in  the  case, 
and  which  has  been  ruled  upon  by  the  trial  court,  may 
be  reviewed  in  the  appellate  court;  such  as  a  defect  in 
process  or  its  service,®'  or  the  setting  aside  of  a  capias  ad 
respondendum,®*  but  not  the  proceedings  on  entry  of 
judgment  by  default  and  assessment  of  damages  by  the 
clerk,  the  court  below  not  having  passed  upon  them.®^ 

82  Sup.  Ct.  Rule  44.  86  Soper    v.    Fry,    37    Mich.    236; 

88Cir.  Ct.  Rule  67.  Earle  v.  Westchester  Fire  Ins.  Co., 

84  Earle  v.  Westchester  Fire  Ins.  29  Mich.  414. 
Co.,  29  Mich.  414.  37  Sallee  v.  Ireland,  9  Mich.  154; 

86  Van     Kleck    v.     Eggleston,     7  Wheeler  v.  Wilkins,  19  Mich.  78. 
Mich.    511 ;    Chatterton    v.    Parrott,  38  Watson    v.    Watson,    47    Mich. 

46  Mich.  432;  Probasco  v.  Cook,  39  427. 

Mich.    714;    Drake   v.   International  39  Beeson    v.    Hollister,    11    Mich. 

Harvester  Co.,  150  Mich.  561.  193. 


268  Case  Made  §  14 

Formerly  a  review  upon  the  facts  as  well  as  upon  the 
law  could  be  had  upon  a  case  made,*°  but  the  act  of  1867 
took  away  the  power  to  review  on  the  facts,*^  and  it  has 
never  been  restored,*^  so  that,  at  the  present  time,  ques- 
tions of  law  only  are  reviewable.  The  facts  can  no  more 
come  before  the  supreme  court  on  case  made  than  by 
bill  of  exceptions.** 

The  suiDreme  court  will  not  weigh  evidence,  determine 
facts  or  review  the  findings  of  the  court  below  upon 
questions  of  fact.**  It  is  only  where  there  is  a  total  want 
of  evidence,  or  where  the  finding  or  verdict  is  contrary 
to  the  undisputed  evidence,  that  the  supreme  court  will 
overturn  the  facts  found  by  the  court  below.*^  And 
jurisdiction  to  review  a  case  made  upon  the  facts  can- 
not be  conferred  by  stipulation  between  the  parties.*^ 
Error  will  not  be  presumed  but  must  be  shown  by  the 
record.*''' 

§  15.  Judgment  of  supreme  court. 

The  judgment  which  will  be  entered  upon  a  case  made 
is  the  same  as  would  be  entered  if  the  cause  were  brought 
up  on  a  writ  of  error.  It  may  be  either  an  affirmance  or 
a  reversal,  in  whole  or  in  part,  of  the  judgment  of  the 
lower  court,  and,  in  case  of  a  reversal,  a  new  trial  may 

40Bou]]ion  v.  Lit<-hfiol(l,  14  Mich.  28  Mich.   123;   Earle  v.  Westchester 

299.  Fire   Ins.    Co.,   29   Mich.   414;    City 

41  Laws    1867,    p.    198,    No.    142;  of   Grand   Rapids   v.   Whittlesey,  32 

How.     Stat.      (2nd     od.)      §11844;  Mich.   192;   Peabody  v.  McAvoy,  23 

Comp.  Laws  191.''),  n26;5:5n.  Mich.    526;    Tuxbury   v.   French,   39 

4:2Jud.    Act,   ch.    18,    §61;    Comp.  Mich.    190;    Chatterton    v.    Parrott, 

Laws  1915,  §12633.  46    Mich.    432;    Wertin    v.    Crocker, 

43  Tuxbury    v.    French,    39    Mich.  47    Mich.   642;    Peck   v.   Snyder,    13 

190;    Earle  v.  Westchester  Fire  Ins.  Mich.   21. 

Co.,  29  Mich.  414.  45  Cragin     v.     Gardner,    64    Mich. 

44Craoin    v.    Gardner,    64    Mich.  399;    Tuxlmry   v.   French,   39   Mich. 

399;     Hcimbach     v.     Weinberg,     18  190. 

Mich.  48;  In  re  Wisner's  Estate,  20  46  Schmidt     v.     Miller,    22     Mich. 

Mich.    128;    Schmidt    v.    Miller,    22  278. 

Mich.    278;     Walrath    v.    Campbell,  47  Nixon  v.   Hood,  201  Mich.   133. 


Cause  of  Action  269 

be  ordered  or  may  be  refused  and  final  judgment  entered 
in  tlie  supreme  court  the  same  as  on  a  writ  of  error.*^ 

§16.  Costs. 

The  general  rules  and  considerations  controlling  the 
matter  of  costs  upon  writs  of  error  control  also  when  a 
cause  has  been  brought  before  the  court  on  a  case 
made.** 

§  17.  Motion  to  dismiss. 

A  motion  to  dismiss  a  case  made  for  irregularity  must 
be  made  at  the  earliest  opportunity.  If  not  so  made,  it 
will  be  denied,  unless  some  sufficient  reason  is  shown  to 
excuse  the  delay;  ^"  but,  as  the  case  must  be  in  the 
supreme  court  before  that  court  can  take  any  action  on 
it,  a  motion  to  dismiss  a  case  made  that  has  never  been 
transmitted  to  and  filed  in  that  court  will  be  denied.®^ 

Where  a  party  has  neglected  to  cause  a  case  made  to 
be  filed  in  the  supreme  court  within  the  time  allowed 
therefor,  the  court  will  dismiss  it  if  it  be  filed  there- 
after; ^^  but  a  dismissal  will  not  be  ordered  on  the  ground 
of  delay  merely,  where  the  delay  has  been  for  a  shorter 
period  than  that  given  by  the  statute  for  bringing  writs 
of  error."  A  case  made  will  generally  be  dismissed 
where  no  objections  whatever  appear  in  the  record." 

CATTLE 

See  Animals;  Replevin   (description  of  in  writ). 

CAUSE  OF  ACTION 

See  Pleading;  Joinder  and  Splitting  of  Causes  of  Action;  Venue; 
Election  Between  Remedies. 

48  See  Error,  Writ  of.  62  Van  Blarcom  v.  Aetna  Ins.  Co., 

49  See  Supreme  Court.  6  Mich.  299. 

50  Stewart  v.  Dixon,  6  Mich.  391.  53  Ackley  v.   Sager,  30  Mich.  264. 
61  Robertson    v.    Little,    10    Mich.  64  Wilkinson    v.    Earl,    39     Mich. 

371.  626. 


270  Cemeteries 

CEMETERIES 


See  Exemptions. 


See  Plbiading. 


CERTAINTY 


CERTIFICATES 

See  Affidavits;  Depositions;  Costs;  Bail;  Case  Made;  Attachment; 
Executions;  Judgments;  Justices  of  the  Peace. 

CERTIORARI 

§    1.  Definition. 

§    2.  What  court  may  issue  writ. 

S    3.  Circuit  courts. 

S    4.  As  writ  of  right. 

8    5.  In  what  cases  writ  lies. 

S    6.  Particular  cases  where  writ  does  not  lie. 

§    7.  From  supreme  court  to  justices  of  the  peace. 

§    8.  Before  final  determination. 

§    9.  Eeview  of  decisions  of  Industrial  Accident  Board. 

§  10.  Who  may   allow   writ. 

§  11.  Who  may  apply  for  writ. 

§  12.  Limitation  of  time  for  bringing. 

§  13.  Against  whom  writ  should  run. 

§  14.  Petition  or  affidavit. 

§  15.  Notice  of  application  for  writ,  briefs  and  order. 

§  16.  Form   of  writ. 

§  17.  Service  of  writ. 

§  18.  Notice  of  issuance  of  writ. 

8  19.  Time  for  return. 

S  20.  Who  should  make  return. 

§  21.  Form  and  contents  of  return. 

§  22.  Further  return. 

§  23.  Conclusiveness  and  effect   of  return. 

§  24.  Striking  out  return. 

§  25.  Effect  of  failure  to  make  return. 

§  26.  Assignment  of  errors  and  notice  of  hearing. 

§  27.  Printing  of  record  and  briefs. 

§  28.  What  errors  will  be  considered. 

§  29.  Judgment. 

§  30.  On  certiorari  to  Industrial  Accident  Board. 

§  31.  Costs. 

§  32.  Motion  to  dismiss  writ. 

Cross-Be ferences:  Justices  of  the  Peace  (certiorari  to  review  judg- 
ment of  in  circuit  court) ;  Habeas  Corpus  (certiorari  to  inquire  into  cause 
of  detention  of  prisoners)  ;  Mandamus  (certiorari  to  review  decision  of). 


§  2  Certiokaei  271 

§  1.  Definition. 

A  writ  of  certiorari  is  a  writ  issued  by  a  superior 
court  to  an  inferior  court  (whether  of  record  or  not  of 
record),  tribunal,  board  or  officer,  requiring  the  latter 
to  certify  to  the  former  the  record  or  proceedings  in 
cases  where  the  procedure  is  not  according  to  the  course 
of  the  common  law.  It  is  so  called  from  the  emphatic 
word  in  the  Latin  writ,  which  read,  "quia  certis  de 
causis  certiorari  volumus,"  i.  e.,  "because  concerning 
certain  causes  we  are  willing  to  be  certified. ' '  ^ 

§  2.  What  court  may  issue  writ. 

The  power  to  issue  the  writ  of  certiorari  is  vested  in 
the  supreme  court  by  the  constitution,^  and  it  cannot 
be  taken  away  by  legislative  enactment.*  It  is  true  that 
legislative  provisions,  in  given  instances,  may  supersede 
the  necessity  for  reviewing  questions  in  this  form,  but 
the-  propriety  of  proceeding  by  certiorari  in  those  cases 
to  which,  by  the  principles  of  the  common  law,  it  is 
rightly  adapted  must  depend  on  a  sound  judicial  dis- 
cretion ;  *  but,  while  the  power  exists,  it  has  been  con- 
sidered one  which  should  be  exercised  sparingly  in  cases 
where  other  adequate  remedies  can  be  had,  and,  where  a 
decision  can  be  taken  up  by  appeal  and  on  that  appeal 
the  jurisdictional  questions,  as  well  as  those  arising  on 
the  merits,  can  be  fully  disposed  of,  a  certiorari  should 
not  be  allowed,  unless  circumstances  exist  which  show 
that  a  failure  of  justice  will  result  from  denying  it.^  In 
view  of  the  power  conferred  upon  the  circuit  courts  to 

IBac.  Abr.  tit.  "Certiorari,"  A;  3  Specht    v.    City    of    Detroit,    20 

Cyc.   Law  Diet.    tit.   "Certiorari";  Mich.     168;     City     of     Detroit     v. 

And.   Law   Diet.    tit.   "Certiorari."  Wabash,  etc.,  R.  Co.,  63  Mich.  712. 

As  to  the  scope  of  the  writ  in  Eng-  4  Specht    v.    City    of    Detroit,    20 

land  at  the  common  law,  see  Board  Mich.  168. 

of   Supervisors  v.   Wag:oon,   109  111.  5  Farwoll  v.  Taylor,  12  Mich.  113 ; 

146.  Detroit,  etc.,  R.  Co.  v.  Graham,  46 

2  Const.  Art.  VI 1,  see.  4.  Mich.  642. 


272  Certiorari  §  2 

issue  the  common  law  writ  of  certiorari,  the  supreme 
court  encourages  the  invocation  of  that  jurisdiction  in 
all  cases  to  which  it  extends  rather  than  its  own,  so  that 
the  allowance  of  a  certiorari  from  the  supreme  court  in 
those  cases  is  exceptional,  and  not  favored  except  where 
it  is  necessary  to  prevent  a  failure  of  justice.® 

§  3.  Circuit  courts. 

By  statute,  circuit  courts  have  exclusive  jurisdiction 
except  as  otherwise  provided  to  issue  writs  of  cer- 
tiorari.' By  rule  of  court,  they  have  jurisdiction  to  issue 
such  writs  ''in  all  cases  where  they  may  now  be  issued 
by  the  supreme  court  to  probate  courts,  circuit  court 
commissioners,  and  justices  of  the  peace,  or  any  cor- 
porate body  or  board  or  officers  thereof."^  , 

§  4.  As  writ  of  right. 

The  writ  of  certiorari  is  not  one  of  right,  but  rests 
in  the  sound  discretion  of  the  court  and  will  be  allowed 
or  refused  according  as  the  attainment  of  justice  seems 
to  require.^    The  laches  ^®  of  the  party  applying  for  the 

6  Adams  V.  Abram,  38  Mich.  302 ;  9  In  re  Lantis,  9  Mich.  324; 
Withington  v.  Southworth,  26  Mich.  Specht  v.  City  of  Detroit,  20  Mich. 
381;  White  v.  Boyce,  88  Mich.  349;  171;  Tucker  v.  Parker,  50  Mich.  6; 
People  V.  Turja,  157  Mich.  530;  Kimball  v.  Herman,  74  Mich.  699; 
Smith  V.  Keed,  24  Mich.  240 ;  Adams  People  v.  Wayne  Drain  Com  'r,  40 
V.  Abram,  38  Mich.  302;  Kimball  Mich.  745;  Gager  v.  Chippewa 
V.  Homan,  74  Mich.  699;  Meads  Sup'rs,  47  Mich.  167;  Baudistel  v. 
V.  Belt  Copper  Mines,  125  Mich.  City  of  Jackson,  110  Mich.  357; 
456;  West  v.  Parkinson,  130  Mich.  City  of  Detroit  v.  Murphy,  95  Mich. 
401.  531;    Detroit   Eiver    Transit    Co.    v. 

7  Jud.  Act,  ch.  6,  §  1;  Comp.  Laws  Union  Trust  Co.,  152  Mich.  91. 
1915,   §12299.  lOBresler  v.  Ellis,  46  Mich.  335; 

8  Cir.  Ct.  Rule  50,  §  1.  See  also  Parman  v.  Board  of  School  Inspec- 
Merrick  v.  Board  of  Arbela  Tp.,  41  tors,  49  Mich.  63;  Eentz  v.  City  of 
Mich.  630;  Zook  v.  Blough,  42  Mich.  Detroit,  48  Mich.  544;  City  of  De- 
487;  Swift  v.  Wayne  Circuit  Court  troit  v.  Murphy,  95  Mich.  531;  Kim- 
Judges,  64  Mich.  479;  Thompson  v.  ball  v.  Homan,  74  Mich.  699;  Owos- 
School  Dist.  No.  6  of  Crockery  Tp.,  so  School  District  v.  Scioto,  etc., 
25  Mich.  483.  School     Inspectors,     27     Mich.     3; 


§4 


Certioeaki 


273 


writ,  his  complicity  in  or  waiver  of  the  errors  complained 
of,^^  his  lack  of  any  peculiar  and  substantial  interest  in 
the  proceedings,^^  the  availability  of  some  other  ade- 
quate remedy,^^  and  the  fact  that  the  questions  involved 
are  moot  questions,"  are  matters  which  usually  effectuate 
a  refusal  of  the  writ.  It  ought  not  to  issue  where  the 
equities  are  against  it,^^  nor  unless  it  is  made  to  appear 
that  an  injustice  has  been  done,^^  nor  where  plaintiff 
has  elected  to  pursue  another  remedy.^'''  And  it  will,  not 
be  granted  to  enforce  a  strict  legal  right  where  justice 
cannot  be  done  and  where  petitioners  are  guilty  of 
laches  in  failing  to  take  prompt  action.^® 


Gentle  v.  Colfax  School  Inspectors, 
73  Mich.  40;  Perrizo  v.  Kessler,  93 
Mich.  280;  Atlec  v.  Wexford  Super- 
visors, 94  Mich.  562. 

11  Harbaugh  v.  Martin,  30  Mich. 
234;  Hollcnburg  v.  City  of  Shuffert, 
47  'Mich.  126;  Horner  v.  Biggam, 
36  Mich.  243;  City  of  Detroit  v. 
Murphy,   95   Mich.   531. 

12  Board  of  Education  v.  Gille- 
land,  191  Mich.  276;  Davison  v. 
Otis,  24  Mich.  23;  People  v.  Leavitt, 
41  Mich.  470;  Hewitt  v.  Oakland 
Probate  Judge,  67  Mich.  1;  Mont 
gomery  v.  Muskegon  Booming  Co., 
104  Mich.  411;  Wolpcrt  v.  New- 
comb,  106  Mich.  357;  Vanderstolph 
v.  Boylan,  50  Mich.  330;  Morse  v. 
Williams,  92  Mich.  250. 

13  Mathias  v.  Mason,  66  Mich. 
524;  Woodin  v.  Phoenix,  41  Mich. 
655;  Smith  v.  Eeed,  24  Mich.  240; 
Parker  v.  Copland,  4  Mich.  528; 
Farroll  v.  Taylor,  12  Mich.  113; 
Specht  v.  City  of  Detroit,  20  Mich. 
168;  City  of  Ishpeming  v.  Maroney, 
49  Mich.  226;  Eldridge  v.  Hubbell, 
119  Mich.  61;  Hartz  v.  Brown,  165 
Mich.  660;  Loomis  v.  Hartz,  165 
Mich.  662;  Custer  Tp.  v.  Dawson, 
178   Mich.   367;    City   of   Ishpeming 

1  Abbott— 18 


V.  Maroney,  49  Mich.  226;  John 
Hancock  Mut.  Life  Ins.  Co.  v. 
Wayne  Circuit  Judge,  97  Mich. 
613;  U.  S.  Gypsum  Co.  v.  Kent  Cir- 
cuit Judge,  150  Mich.  668;  Detroit 
Eiver  Transit  Co.  v.  Union  Trust 
Co.,  152  Mich.  91;  John  Hancock 
Mut.  Life  Ins.  Co.  v.  Hill's  Estate, 
108  Mich.  129;  In  re  Phillips,  154 
Mich.  139;  Detroit  Lumber  Co.  v. 
Petrel,  155  Mich.  350;  People  v. 
James,  155  Mich.  548;  Mathias  v. 
Mason,  66  Mich.  524;  Galloway  v. 
Corbitt,  52  Mich.  460;  McNaughton 
V.  Everts,  116  Mich.  141. 

14  Shoumnk  v.  Ferguson,  191 
Mich.  284;  Carlson  v.  Wyman,  189 
Mich.  402. 

15  People  V.  Wayne  Drain  Com  'r, 
40  Mich.  745. 

16  West  V.  Parkinson,  130  Mich. 
401,  denied  where  petitioner  had 
failed  to  put  in  any  defense  in  a  suit. 

It  does  not  lie  to  review  a  ques- 
tion as  to  fees  where  the  amount 
in  controversy  is  very  small.  An- 
tiau  V.  Nadeau,  53  Mich.  460. 

17  See   §6,  post. 

18  Baudistcl  v.  Recorder  and  Com- 
mon Council  of  City  of  Jackson,  110 
Mich.  357. 


274  Certiorari  §  5 

§  5.  In  what  cases  writ  lies. 

The  office  of  a  writ  of  certiorari  is  to  bring  up  for 
review  the  proceedings  of  the  lower  court,  tribunal, 
board  or  officer  to  determine  whether  such  court,  tribu- 
nal, board  or  officer  acted  within  its  or  his  jurisdiction 
either  in  assuming  jurisdiction  of  the  proceedings  or 
in  the  manner  in  which  the  jurisdiction  was  exercised." 
Only  questions  of  law  can  be  reviewed.  Questions  of 
fact  cannot  be  tried.^° 

Certiorari  lies  only  to  review  proceedings  of  a  judicial 
nature  as  distinguished  from  those  of  a  ministerial,  ex- 
ecutive or  legislative  character.^^  It  also  lies  only  to 
review  proceedings  which  are  not  according  to  the  course 
of  the  common  law.^^  Thus,  where  a  stay  of  execution 
before  a  justice  has  been  filed  in  the  office  of  the  county 
clerk,  and  the  circuit  court,  upon  application  of  the 
judgment  creditor,  grants  an  order  allowing  an  execu- 
tion against  the  surety,  a  writ  of  certiorari  will  lie  to 
review  such  order.^*  The  filing  of  a  transcript  of  judg- 
ment of  a  justice  of  the  peace  in  the  circuit  court  is  a 
special  proceeding,  authorized  only  by  statute,  and  not 
according  to  the  course  of  the  common  law,  and,  after 

WMeGurrin  v.  Grand  Kapids  Tp.  Estate,    179    Mich:    567;    Hartz    v. 

Board,    186    Mich.    475;    Huyser    v.  Wayne    Circuit    Judge,    164    Mich. 

Zealand,  etc..  School  Inspectors,  131  231;     Collier     v.     St.     Charles     Tp. 

Mich.  568.  Board,  147  Mich.  688. 


20Higley  v.  Laut,  3  Mich.  612 
Cicotte  V.  Morse,  8  Mich.  424 
McGraw  v.  Schwab,  23  Mich.  13 
Bullard  v.  Hascall,  25  Mich.  132 
Smoke  v.  Jones,  35  Mich.  409 
Brown  v.  Blanchard,  39  Mich.  790 
Carver  v.  Chapell,  70  Mich.  49 
Willison  V.  Desenberg,  41  Mich 
156;  Shelden  v.  Stewart,  43  Mich 
574;    Meeske    v.    Miller,    138    Mich 


21  Boot  V.  Barnes,  1  Mich.  37; 
Midland  Sup'rs  v.  Auditor  General, 
27  Mich.  165;  Merrick  v.  Arbela  Tp. 
Board,  41  Mich.  630;  Greenville 
Gas,  etc.,  Co.  v.  City  of  Greenville, 
165  Mich.  135;  Brody  v.  Penn  Tp. 
Board,  32  Mich.  272;  Germaine  v. 
Ferris,  176  Mich.  585, 

22  In  re  Stroebel,  194  Mich.  634; 
In   re   Erdnian's   Estate,   179   Mich. 


87 :  Booker  v.  Grand  Rapids  Medical  567. 

Cdllot^e,   156   Mich.   95;    In   re   Bad-  23  Jerome    v.    Williams,    13    Mich. 

lord,    168    Mich.    474;     Jackson    v.  521. 

rcnple,  9  Mich.  Ill;  In  re  Erdman's 


§  5  Certiorari  275 

execution  has  been  issued  from  the  circuit  court,  cer- 
tiorari will  lie  to  review  the  proceedings  for  the  pur- 
pose of  ascertaining  their  validity.^*  Certiorari  will  lie 
to  review  proceedings  to  condemn  land  when  void  for 
want  of  jurisdiction,  though  it  should  not  be  favored 
where  any  other  remedy  is  adequate.^^  Certiorari  will 
lie  to  review  a  judgment  of  the  circuit  court  overruling 
a  special  appeal  from  justice's  court,^^  a  judgment  of 
the  circuit  court  affirming  an  order  of  the  probate  court 
construing  a  will,^"^  and  an  order  of  the  circuit  court 
setting  aside  an  order  of  the  probate  court  granting  leave 
to  bring  suit  upon  a  guardian's  bond.^'  The  action  of 
a  circuit  judge  in  entering  a  jury  room  and  giving 
the  jury  instructions  without  the  presence  of  counsel  or 
the  court  stenographer  is  properly  brought  before  the 
supreme  court  by  a  writ  of  certiorari  in  aid  of,  and  in 
connection  with,  a  writ  of  error  in  the  case.^^  Certiorari 
lie's  to  review  the  action  of  a  board  of  supervisors  in 
removing  a  county  officer,^"  or  organizing  a  township,^^ 
and  of  a  township  board  in  removing  the  assessor  of  a 
school  district.^^  It  is  a  proper  proceeding  to  get  rid 
of  a  void  judgment  ^^  or  other  void  proceeding.^* 

It  lies  to  review  the  proceedings  of  a  circuit  court  com- 
missioner for  the  dissolution  of  an  attachment;  ^^  to  re- 

24Wc(lcl  V.  Green,  70  Mich.  642.  31  People    v.    Gladwin    Sup'rs,   41 

25Dunlap   V.   Toledo,  etc.,  E.   Co.,  Mich.  647. 

46  Mich.   190;    Custer  Tp.  v.  Daw-  32  Merrick   v.   Arbela   Tp.   Board, 

son,   178  Mich.  367.  41  Mich.  630. 

26  Peterson    v.   Fowler,    76   Mich.  33  Harbour   v.   Eldred,    107   Mich, 
258.  95. 

27  Glover  v.  Eeid,   80   Mich.  228;  84 People    v.    Gladwin    Sup'rs,   41 
Kelly  V.  Eeynolds,  39  Mich.  464.  Mich.  647;  Whitford  Tp.  v.  Monroe 

28  Welch  V.  Van  Auken,  76  Mich.  Probate  Judge,  53  Mich.  130;   Null 
464.  V.   Zierle,   52  Mich.   540;    Dunlap  v. 

29  Fox  V.  Peninsular  W.  L.  &  C.  Toledo,  etc.,  E.  Co.,  46  Mich.  190; 
Works,  84  Mich.  676.  Rixby  v.  Goss,  54  Mich.  551. 

30  McGregor    v.    Gladwin    Sup  'rs,  36  People    v.    Judge    of    St.    Clair 
37    Mich.   388;    Gager   v.   Chippewa  Circuit,  32  Mich.  95. 

Sup'rs,  47  Mich.  167. 


276  Certiorari  §  5 

view  the  action  of  a  circuit  court  in  an  attachment  case, 
when  the  affidavit  was  insufficient,  and  the  court,  with- 
out authority,  allowed  a  new  one  to  be  filed  ;^^  to  review 
the  decision  of  a  notary  public  acting  as  commissioner, 
in  dissolving-  an  attachment,  the  law  under  which  he 
acted  being  declared  unconstitutional ;  ^'  to  review  a  de- 
cision relating  to  the  maintenance  of  illegitimate  chil- 
dren ;  ^®  to  review  the  appointment  of  a  guardian  where 
the  notice  required  by  statute  was  not  given ;  ^^  to  review 
proceedings  to  lay  out  a  highway;  *°  to  review  the  action 
of  a  town  board  on  appeal  from  school  inspectors  in  ar- 
ranging school  districts  where  the  former  acts  without 
authority  and  reverses  the  action  of  the  inspector;  *^ 
where  school  inspectors  undertake  to  establish  a  school 
district  illegally;*^  and  to  review  township  drain  pro- 
ceedings where  the  defects  go  to  the  jurisdiction.*^ 

§  6.  Particular  cases  where  writ  does  not  lie. 

Certiorari  will  not  lie  to  review  a  proceeding  in  the 
circuit  court,  until  that  court  has  decided  the  matter.** 
The  writ  will  not  lie  to  review  the  action  of  the  circuit 
court  in  the  exercise  of  its  discretionary  power,  such  as 
an  order  vacating  a  judgment.*^  It  does  not  lie  to  re- 
view the  action  of  a  circuit  judge  in  appointing  himself 
referee  in  a  cause  pending  before  him,  the  proper  remedy 

36  People      v.       Branch       Circuit  43  Bixby  v.  Goss,  54  Mich.  551. 
Judges,  1  Doug.  319.  44  People      v.      Allegan      Circuit 

37  Chandler  v.  Nash,  5  Mich.  409.  Judge,     29     Mich.     487;     Palms    v. 

38  Perkins  v.  Superintendents  of  Campau,  11  Mich.  109;  Culver  v. 
the  Poor  of  Lapeer  County,  1  Mich.  Travis,  108  Mich.  640;  Detroit,  etc., 
504.  E.  Co.  V.  Backus,  48  Mich.  582. 

39  North  v.   .Joslin,   59  Mich.   624.  46  Van    Eenselaer   v.   Whiting,   12 

40  Names  v.  Olive  &  Bobinson  Mich.  449;  Campau  v.  Coates,  17 
Tps.,  30  Mich.  490.  Mich.     235;     Stimson    v.     Michigan 

41  Brody  v.  Township  Board  of  Shingle  Co.,  71  Mich.  374;  Fellows 
Penn  Tp.,  32  Mich.  272.  v.   Canney,   75   Mich.  445. 

42  Huyser  v.  Board  of  School  In- 
spectors of  Zeeland,  Olive  and  Blen- 
don  Tps.,  131  Mich.  568. 


§  6  Certioraei  277 

being  mandamus,*^  nor  to  review  an  order  refusing  a 
petition  for  the  punishment  of  a  sheriff  for  contempt  in 
omitting  the  performance  of  his  duty.*'''  Error,  and  not 
certiorari,  is  the  proper  remedy  to  bring  up  for  review 
an  order  of  the  circuit  court  dismissing  on  motion,  for 
want  of  jurisdiction,  a  writ  of  certiorari  from  that  court 
to  a  circuit  court  commissioner  for  the  review  of  pro- 
ceedings under  the  statute  to  recover  the  possession  of 
land,*^  or  the  judgment  of  the  circuit  court  in  such  pro- 
ceedings on  appeal  from  the  commissioner.*^  And  cer- 
tiorari will  not  lie  to  the  commissioner  in  such  proceed- 
ings.®°  Nor,  on  grounds  of  public  policy,  will  the  writ  of 
certiorari  lie  to  bring  tax  proceedings  before  the  supreme 
court  for  review.^^  The  action  of  the  auditor  general  in 
charging  back  to  a  county  certain  taxes  in  his  settlement 
with  the  county,  being  the  exercise  of  an  official  discre- 
tion belonging  to  an  executive  department  of  the  state 
government,  is  not  subject  to  judicial  review  and  can- 
not, therefore,  be  examined  upon  certiorari. ^^  The  su- 
preme court  will  not,  on  certiorari,  exercise  an  original 
jurisdiction  for  the  purpose  of  curing  defects  in  proceed- 
ings for  laying  out  a  township  drain."  The  question  of 
the  adequacy  of  the  compensation  awarded  by  a  com- 
missioner of  highways  for  land  taken  for  highway  pur- 
poses cannot  be  considered  on  certiorari,  nor  in  any 
other  manner  than  by  appeal  to  the  township  board. ^* 

The  court  has  "power"  to  issue  the  writ  even  though 
there  is  another  adequate  remedy,^^  but  in  such  a  case  it 

46  Woodin    v.    Phoenix,    41    Mich.  52  Midland  Sup 'rs  v.  Auditor  Gen- 
655.  eral,  27  Mich.  165. 

47  Schwab  v.  Coots,  44  Mich.  463.  63  Tucker  v.  Parker,  50  Mich.   5; 

48  Robens  v.  Vidcto,  33  Mich.  240.  Dietz  v.  Frazier,  50  Mich.  227. 

49  Parker  v.  Copland,  4  Mich.  528.  64  Weber  v.  Ryers,  82  Mich.  177. 
60  Smith    V.    Reed,    24    Mich.    240.  65  Dunlap  v.   Toledo,  A.,  A.  &  G. 
61W)iitbeck    v.    Hudson    Common       T.  R.   Co.,  46  Mich.   190. 

Council,  50  Mich.  86;  Hudson  Com- 
mon Council  V.  Whitney,  53  Mich. 
158. 


278  Certiorari  §  6 

should  not  be  allowed  unless  circumstances  exist  which 
show  that  a  failure  of  justice  will  result  from  denying 
it.*^  Where  a  party  has  elected  to  rely  on  another  rem- 
edy, such  as  an  action  at  law,  he  is  not  entitled  to  a  writ 
of  certiorari.^' 

It  does  not  lie  to  review  the  proceedings  for  the  col- 
lection of  a  penalty,  where  the  penalty  has  been  paid.^' 
So  it  does  not  lie  to  set  aside  the  judgment  where  a  fine 
imposed  has  been  voluntarily  paid  by  a  third  person, 
and  respondent  released  before  the  writ  was  taken  out.^® 

Certiorari  does  not  lie  to  review  the  determination  of 
the  governor  of  the  state  in  removing  from  office  the 
mayor  of  a  city,  since  to  allow  the  writ  would  invade 
the  functions  of  the  executive  department.^®  So  it  is  not 
the  proper  remedy  to  review  an  order  of  the  circuit  court 
determining  that  a  witness  should  answer  interroga- 
tories asked  under  letters  rogatory  from  the  court  of  a 
sister  state  or  be  punished  for  contempt  of  court.®^  Like- 
wise the  act  of  a  common  council  in  passing  an  ordi- 
nance requiring  a  company  to  remove  its  poles  and 
wires  from  the  streets,  in  alleged  violation  of  its  fran- 
chise rights,  is  not  reviewable  by  certiorari.^^ 

§  7.  From  supreme  court  to  justices  of  the  peace. 

Ordinarily  the  writ  will  not  issue  from  the  supreme 
court  to  justices  of  the  peace.^'  The  allowance  of  a  cer- 
tiorari from  the  supreme  court  to  directly  review  pro- 
ceedings before  a  justice  of  the  peace  is  exceptional  and 

56Farwell  v.  Taylor,  12  Mich.  113.  62  Greenville  Gas,  etc.,  Co.  v.  City 

67  Mathias    v.    Mason,    66    Mich.       of  Greenville,  165  Mich.  135. 

524.  63  Certiorari    does    not    lie    where 

68  Powell  V.  People,  47  Mich.  108.  personal    service    was    had    and    de- 

69  City  of  Ishpeming  v.  Maroney,  fendant  appeared  on  the  return  day 
49  Mich.  226.  but  did  not  appear  at  the  trial  nor 

eOGermaine  v.  Governor,  176  appealed.  White  v.  Boyce,  88  Mich, 
Mich.  585.  349. 

61  Van  Dyke  v.  Doughty,  174  Mich. 
351. 


§  8  Certiorari  279 

not  favored  except  where  necessary  to  prevent  a  failure 
of  justice,^*  as  where  the  case  was  commenced  before  a 
justice  by  attachment,  and  no  personal  service  had,  and 
no  appearance  entered,  and  defendants  had  no  notice  of 
the  proceeding  until  after  the  statutory  remedy  was 
gone.^^ 

§  8.  Before  final  determination. 

By  statutory  provision,  the  decision  of  the  circuit 
court  denying  a  motion  to  dismiss  or  quash  a  writ  or 
declaration  upon  jurisdictional  grounds,  or  upon  issues 
which  under  the  former  practice  would  have  been  raised 
by  demurrer,  plea  to  the  jurisdiction  or  other  dilatory 
plea,  may  be  reviewed  by  writ  of  certiorari  forthwith; 
in  which  case,  upon  the  issue  of  the  writ,  the  supreme 
court  may,  upon  proper  cause  shown,  stay  the  proceed- 
ings in  the  circuit  court  pending  their  decision  on  the 
writ,  or  the  decision  denying  the  motion  may  be  re- 
viewed on  a  writ  of  error  to  review  the  final  judgment 
in  case  the  party  whose  motion  was  denied  has  pleaded 
over  and  a  final  judgment  on  the  merits  has  been  ren- 
dered against  him.^^  The  Judicature  Act,  by  an  added 
provision,  changes  the  former  law  by  authorizing  a  re- 
fusal of  the  writ  where  the  justice  or  justices  considering 
the  application  affirmatively  determine  from  the  peti- 
tion and  brief  that  the  petition  does  not  present  a  meri- 
torious question.^''' 

Except  as  authorized  by  this  statute,  certiorari  does 
not  lie  until  the  proceedings  sought  to  be  reviewed  are 
completed  and  a  final  determination  had,^^  and  hence  the 

64  Adams  v.  Abram,  38  Mich.  302.  Minneapolis,  etc.,  E.  Co.,  184  Mich. 

65Withington    v.    Southworth,    26  G81;    Wanner   v.   Martin,   173   Mich. 

Mich.  281.  503. 

66Jutl.   Act,   ch.   50,    §14;    Corap.  67  J  ml.    Act,   ch.   50,    §15;    Comp. 

Laws   1915,    §13749;    La  Vassar  v.  Laws  1915,  §13750. 

Chosbrough    Lumber   Co.,   190   Mich.  68  Detroit   W.   T.   &   J.   R.   Co.    v. 

■lO.!;    City    of    Sault    Ste.    Marie    v.  Uackiis,  48  Mich.  582. 


280  Certiorari  §  8 

rulings  of  the  circuit  court  in  overruling  objections  taken 
by  special  appeal  will  not  be  reviewed  by  certiorari  where 
no  final  judgment  was  entered.^®  So  it  will  not  lie  to  re- 
view an  order  of  a  circuit  court  allowing  an  appeal  from  a 
probate  court  after  sixty  days  from  the  making  of  the 
order  in  the  probate  coui't,  until  after  the  adjudication 
upon  the  appeal  by  the  circuit  court.'"  The  refusal  of  a 
petition  to  punish  a  sheriff  for  contempt  in  omitting  to 
perfoiin  his  duty  is  not  a  final  order.'^  Prior  to  the  stat- 
ute, the  writ  would  not  be  granted  to  review  an  interlocu- 
tory order  where  no  injustice  could  result  from  the  ac- 
tion of  the  lower  court  and  final  judgment  could  protect 
the  relator's  legal  rights.'^ 

§  9.  Review   of   decisions    of   Industrial   Accident 

Board. 

Certiorari  is  the  appropriate  and  usual  method  of  se- 
curing a  review  by  the  supreme  court  of  the  determina- 
tions of  the  Industrial  Accident  Board.  The  application 
for  the  writ  must  be  made  within  thirty  days  after  the  de- 
termination by  the  board. ''^^ 

Questions  of  law  only  will  be  reviewed.  By  statute,  the 
findings  of  fact  made  by  the  board,  acting  within  its 
powers,  are,  in  the  absence  of  fraud,  conclusive,'''*  and,  in 
accordance  therewith,  as  well  as  with  the  rule  in  other 
cases  in  which  the  writ  lies,  the  court  will  not  review  the 
evidence,  except  to  ascertain  whether,  as  to  any  fact 
found,  there  is  a  total  absence  of  sustaining  evidence. 
Unless  there  is  no  proof  to  support  the  finding,  the  court 

69  Culver    v.     Travis,     108     Mich.       Comp.  Laws  1915,  §5465;   Papinaw 
640.  V.   Grand   Trunk   R.   Co.,   189   Mich. 

70  Palms  v.  Campau,  11  Mich.  109.       441;     Bayne    v.    Riverside    Storage, 

71  Schwab  V.  Coots,  44  Mich.  463.       etc.,  Co.,  181  Mich.  378;  Redfield  v. 
78  Meads    v.    Belt    Copper    Mines,       Michigan,   etc.,   Ins.   Co.,   183   Mich. 

125  Mich.  456.  633;   Beckwith 's  Estate  v.  Spooner, 

73  How.    Stat.    (2nd    ed.)  §3980;       183  Mich.  323 ;  Daich  v.  Studebaker 
Comp.  Laws  1915,   8  5465.  Corporation,   195  Mich.  482. 

74  How.    Stat.    (2nd.   ed.)  §3980; 


§  11  Certiorari  281 

has  no  power  to  interfere.'^  Where  the  finding  of  the 
board  is  supported  by  any  competent  legal  evidence, 
either  directly  or  inferentially,  it  will  be  taken  as  con- 
clusive/® When  different  inferences  might  legitimately 
be  drawn  from  what  the  record  discloses,  the  court  will 
not  disturb  the  inference  which  the  board  has  drawn." 
Nor  will  it  do  so  because  hearsay  or  other  incompetent 
testimony  has  been  admitted  by  the  board,  if  there  is 
other  evidence  sufficient  to  support  the  findingj^ 

§  10.  Who  may  allow  writ. 

The  w^rit  of  certiorari,  not  being  a  writ  of  right  but  one 
of  discretion,  issues  only  after  it  has  been  allowed  by  the 
proper  officer  upon  application  and  sufficient  showing  of 
the  grounds  therefor  by  affidavit.'''^  If  the  writ  is  to  be 
issued  out  of  the  supreme  court,  application  must  be  made 
to  a  justice  of  that  court, ^° — the  Judicature  Act  having 
changed  the  law  in  this  respect  in  that  formerly  applica- 
tion could  be  made  to  any  such  justice  or  a  circuit  judge 
or  a  circuit  court  commissioner.  If  the  writ  is  to  be  is- 
sued out  of  the  circuit  court,  application  may  be  made  to 
the  circuit  court  or  a  judge  thereof.^^ 

§  11.  Who  may  apply  for  writ. 

Any  person  whose  rights  have  been  injuriously  affected 
by  the  proceedings  complained  of  may  apply  for,  and,  if 
an  allowance  is  obtained,  sue  out,  a  writ  of  certiorari, 

75Redfield  v.  Michigan,  etc.,   Ins.  ]90  Mieh.  229;  Lindstoadt  v.  Sands 

Co.,  18.S  Mieh.  633.  Salt  &  Lumber  Co.,  190  Mich.  451. 

76  Hills    V.    Blair,    182    Mich.    20;  77  Beckwith's    Estate    v.    Spooner, 

Rayner  v.   Sligh   Furniture   Co.,   180  183  Mich.  323. 

Mich.  168;  Grove  v.  Michigan  Paper  78  Fitzgerald  v.  Lozier  Motor  Co., 

Co.,      184      Mieh.      449;      Reek      v.  189    Mieh.    660;    Reek    v.    Whittles- 

Wliittlcsberger,      181      Mich.      463,  berger,   181   Mich.   463,   5   N.   C.   C. 

5     N.     C.     C.     A.     917;     Bayne     v.  A.  917. 

Riverside    Storage    &    Cartage    Co.,  79  Young  v.  Kelsey,  46  Mich.  414. 

181   Mich.  378;    La  Veck  v.  Parke,  80  Jud.  Act,   ch.   50,    §12;    Comp. 

Davis  &  Co.,  190  Mich.  604;  Bischoff  Laws  1915,   S  13747. 

V     American    Car    &    Foundry    Co.,  81  Cir.  Ct.  Rule  50,   §  2. 


282  Certiorari  §  11 

whether  he  was  named  as  a  party  to  the  proceedings 
sought  to  be  reviewed  or  not.'^ 

On  the  other  hand,  the  writ  is  not  available  to  an  in- 
dividual w^ho  has  no  direct  or  particular  interest  in  the 
proceeding  sought  to  be  reviewed,  unless  he  shows  that 
he  will  suffer  special  injury  beyond  that  which  will  af- 
fect him  in  common  with  the  public  or  others  similarly 
situated.*' 

A  person  is  not  entitled  to  the  writ  unless  he  has  some 
interest  in  the  proceedings  sought  to  be  reviewed  and 
**may,"  at  least,  sustain  injury  thereby.'*  Thus,  indi- 
viduals who  have  no  peculiar  interest  in  the  matter 
sought  to  be  reviewed,  cannot  obtain  the  writ  to  review 
the  official  actions  of  public  officers.'^  And  the  affirm- 
ance, on  an  unauthorized  and  void  appeal,  of  the  judg- 
ment appealed  from,  will  not  be  disturbed  on  certiorari 
by  the  appellant  therein.'^  So  a  taxpayer,  liable  to  be 
called  upon  to  pay  a  trifling  portion  of  the  tax  for  laying 
out  a  highway,  is  too  remotely  interested  to  bring  cer- 
tiorari to  review  the  proceedings  to  lay  out  the  high- 
way.*' But  it  lies  on  the  relation  of  the  supervisors, 
whose  official  rights  are  involved,  to  inquire  into  the  exis- 
tence of  the  township  where  the  action  of  the  board  of 
supervisors  in  organizing  it  is  subject  to  review.**  If  cer- 
tiorari is  to  review  the  proceedings  of  a  board  of  super- 
visors as  to  rebuilding  a  courthouse,  it  is  properly 
instituted  by  the  attorney  general.*^ 

82  Campau  v.  Button,  33  Mich.  85  Wolpert  v.  Newcomb,  106  Mich. 
525;  Wolpert  v.  Newcomb,  106  Mich.      357. 

357;   Lichtenberg  v.   Wayne   Circuit  ,86  Horner    v.    Biggam,    36    Mich. 

Judge,  106  Mich.  38.  243. 

83  Board  of  Education  v.  Gille-  87  Vanderstolph  v.  Highway 
land,  191  Mich.  276.       '  Com'r,  50  Mich.  330. 

84  Davison  v.   Otis,  24  Mich.  23;  88  People  v.   Board  of  Sup'rs  of 
Wolpert    V.     Newcomb,     106     Mich.  Gladmn  County,  41  Mich.  647. 
357;    People    v.    Leavitt,    41    Mich.  89  Attorney   General   v.   Board   of 
470;    Hewitt   v.    Judge   of   Probate  Sup'rs    of    Montcalm    County,    141 
of  Oakland  County,  67  Mich.  1,  one  Mich.  590. 

not    party    to    probate    proceedings. 


§  12  Certioraei  283 

Only  persons  interested  can  be  joined  as  petitioners.*" 
But  where  two  landowners  have  like  complaints  against 
the  laying  out  of  a  highway,  and  their  injuries  are  of  the 
same  nature,  they  may  join  in  certiorari  proceedings."^ 

§  12.  Limitation  of  time  for  bringing. 

No  writ  of  certiorari  can  be  issued  to  correct  any  pro- 
ceedings, unless  it  be  brought  within  the  same  time  after 
such  proceedings  have  been  had  as  is  limited  for  bring- 
ing a  writ  of  error  on  a  judgment.^^  When  a  writ  has 
been  allowed,  mere  delay  in  suing  it  out  for  a  time  within 
the  statutory  limit  for  bringing  the  writ  is  not  a  matter 
of  which  the  adverse  party  can  effectually  complain,  un- 
less, during  the  delay,  rights  have  grown  up  in  reliance 
upon  the  proceedings."' 

But  as  the  allowance  of  the  writ  is  a  matter  of  judicial 
discretion,  it  may  be  refused,  although  the  time  limited 
by  the  statute  has  not  expired,  where  the  delay  appears 
unreasonable,  or  is  likely  to  work  injury."*  For  instance, 
laches  of  the  applicant  for  the  writ,  especially  where  con- 
nected with  implied  acquiescence  in  acts  by  laying  by  and 
seeing  work  done  and  acts  performed  in  connection  with 
the  proceeding  objected  to,  warrants  a  refusal  of  the  writ 
or  a  dismissal  after  it  is  allowed."^    However,  if  the  delay 

90  See  Fitch  v.  Board  of  Auditors  of  certiorari  for  the  laches  of  the 
of  Claims  against  Manitou  County,  parties  in  not  suing  it  out  sooner. 
133  Mich.  178.  Id. 

91  Cowing  V.  Eipley,  76  Mich.  650.  95  in    re    Lantis,    9    Mich.     324 ; 
92Jud.   Act,  ch.   50,    §13;    Comp.       Bandistel  v.  Eecorder  and  Common 

Laws  1915,   §  13748.  Council    of    City    of    Jackson,    110 

93Willson    V.    Gifford,    42    Mich.  Mich.   357;    Dunlap  v.   Toledo,  etc., 

454.  E.  Co.,  46  Mich.  190;  Owosso  Frac- 

94  In    re    Lantis,    9    Mich.     324.  tional  School  Dist.   No.   1   v.   Joint 

Where    eleven    months    had    elapsed  Board     of     School     Inspectors     of 

after  the  confirmation  of  the  report  Owosso,  Scioto,  Bennington  &  Mid- 

of  drain  commissioners,  and  the  re-  dlebury,  27  Mich.  3;  Bresler  v.  El- 

lators    appeared    and    opposed    the  lis,   46   Mich.   335;    Atlee   v.   Board 

confirmation    in    the    circuit    court.  Sup 'rs    Wexford    County,    94    Mich, 

the  supreme  court  quashed  the  writ  562.      Creation    of    school    districts 


284  Certiorari  §  12 

for  less  than  two  years  was  not  due  to  petitioner's  negli- 
gence,®^ or  if  no  rights  have  accrued  in  reliance  on  the 
proceedings  sought  to  be  reviewed,  before  the  writ  was 
sued  out,®'  the  application  should  not  be  denied  because 
of  laches. 

§  13.  Ag-ainst  whom  writ  should  run. 

The  court,  tribunal,  .board  or  ofiicer  whose  action  is  to 
be  reviewed,  and  in  whose  hands  the  record  of  the  action 
remains,  are  the  proper  parties  defendant.®'  Thus,  when 
a  review  is  sought  of  the  action  of  highway  commission- 
ers in  laying  out  a  highway  which  has  been  appealed  to 
the  township  board,  the  writ  of  certiorari  should  be  di- 
rected, not  to  the  highway  commissioners,  but  to  the 
township  board.®®  The  defendants  in  certiorari  should 
be  named  and  also  characterized  by  their  official  ca- 
pacity.^ If  the  proceedings  sought  to  be  reviewed  are 
those  of  a  commissioner,  who  has  gone  out  of  office,  the 
writ  should  be  directed  to  his  successor.^  Where  separate 
proceedings  were  taken  before  two  circuit  court  commis- 
sioners to  remove  the  same  cause  to  another  county  for 
trial,  resulting  in  conflicting  orders,  it  was  proper  to  ad- 
dress the  writ  to  both  commissioners.^  The  writ  should 
be  addressed  to  defendants  in  their  official  capacity;  but 

cannot    be    attacked    after    the    dis-  97  Willson    v.    Gifford,    42    Mich. 

trict    has    been    organized    and    as-  454. 

sumed  corporate  functions.     Owosso  98  Crawford  v.  Seio  &  Webster  Tp. 

Fractional    School    Dist.    No.    1    v.  Boards,  22   Mich.   405. 

Joint    Board    of    School    Inspectors  99  French  v.  Springwells  Highway 

of    Scioto,    Bennington    &    Middle-  Com 'rs,   12   Mich.   267;    Goodrich   v. 

bury,  27   Mich.   3;    Perrizo  v.   Kess-  Lima  Highway  Com 'rs,  1  Mich.  385; 

ler,  93  Mich.  280;  Parnian  v.  Boards  Roberts     v.     Cottrcllville     Highway 

of   School    Inspectors,    49    Mich.    63.  Com 'rs,  24  Mich.  182. 

But  see  Gentle  v.  Colfax  School  In-  1  Willson  v.  Gifford,  41  Mich.  417. 

specters,  73  Mich.  40.  2  Whistler    v.    Wilson,    39    Mich. 

96  City  of  Detroit  v.  Murphy,  95  121. 

Mich.    531.     See   also   Harbaugh   v.  3  Comfort  v.  Stockbridge,  37  Mich. 

Martin,  30   Mich.   234.  472. 


§  14  Certiorari  285 

where  the  writ  is  improperly  addressed  to  an  ofliccr  in  his 
individual  capacity,  but  is  accompanied  by  an  affidavit 
properly  describing  respondent,  and  a  return  has  been 
actually  made,  the  defect  is  cured.* 

§  14.  Petition  or  affidavit. 

Before  a  writ  of  certiorari  can  issue,  a  petition  or  affi- 
davit must  be  filed.*^  Such  petition  or  affidavit  is  not  en- 
titled in  the  cause  or  proceeding.  It  should  specifically 
state  the  errors  relied  on,  inasmuch  as  the  only  assign- 
ments of  error  in  certiorari  proceedings  are  those  set 
forth  in  the  affidavit  and  none  other  can  be  relied  on ;  ^ 
show,  if  there  is  another  remedy,  why  such  remedy  is  not 
adequate,  or  other  justification  for  resorting  to  cer- 
tiorari;"'' show  that  the  proceedings  "may  "at  least  dam- 
age plaintiff;  ^  set  forth  excuses  for  laches,  if  any,  in  mak- 
ing the  application;  and  conclude  with  a  statement  tliat 
the  affidavit  is  made  in  support  of  an  application  for  the 
issuance  of  a  writ  of  certiorari.  It  should  present  the 
rulings  as  they  actually  occurred,  as  in  a  bill  of  excep- 
tions, and  should  not  combine  in  one  recital  a  series  of  de- 
tached rulings  on  points  that  were  not  connectedly  pre- 
sented.^ All  record  evidence  relied  on  should  be  brought 
before  the  court  as  exhibits  in  the  shape  of  certified  or 
authenticated  copies,  and  not  by  mere  recitals  of  its  ex- 
istence.^*^ 

4  Willson  V.  OifFord,  41  Mich.  417.  court    erred    in   rcndcrinj^   judgment 

6  People    V.    Cass    Circuit    Judges,  in  favor  of  i)laintifF  and  that  judg- 

1  Doug.  116.  nicnt   should  have  been   rendered  in 

6  See   Gager   v.   Board   of   Sup  'rs  favor    of    defendant    held    too    gen- 

of  Chippewa  County,  47  Mich.  167;  eral). 

Davison  v.  Otis,  24  Mich.  2'.) ;  Lickly  7  Detroit  &  B.   C.   R.   Co.   v.   Gra- 

v.   Bishopp,    150    Mich.   256;    Welch  ham,  46  Mi<'h.  642. 

V.    Bagg,    12    Mich.    41     (allegation  8  Morse  v.  Williams,  92  Mich.  250. 

that   there   was  no   evidence   to   sua-  9  Knapp  v.  Gamsby,  47  Mich.  375. 

tain  the  verdict  and  judgment  is  too  10  Hewitt  v.  Judge  of  Probate  of 

general)  ;    Fowler   v.    Detroit    &    M.  Oakland   County,  67  Mich.  1. 

Ey.  Co.,  7  Mich.  79  (allegation  that 


286  Certiorari  §  15 

§  15.  Notice  of  application  for  writ,  briefs  and  order. 

Formerly,  it  was  not  necessary,  nor  the  practice,  to  give 
any  notice  to  the  adverse  party  of  the  application  for  the 
writ.  If  the  application  is  to  the  supreme  court,  the  peti- 
tion is  filed  with  the  clerk  and  presented  to  one  of  the 
justices  of  the  court  and  should  be  accompanied  by  a 
brief  in  which  the  nature  of  the  case  and  the  points  of  law 
involved  are  clearly  and  concisely  set  forth.  The  usual 
practice  is  for  the  justice  to  indorse  upon  the  petition  a 
brief  order,  either  allowing  or  disallowing  the  writ,  as  the 
case  may  be. 

However,  the  supreme  court,  on  June  3,  1918,  adopted 
the  following  new  rule  of  court,  to  be  known  as  rule  No. 
60,  as  follows:  ''Within  ten  days  after  the  allowance  of 
a  writ  of  certiorari  by  this  court,  the  plaintiff  in  error 
shall  serve  upon  the  court,  board,  or  other  body  whose 
proceedings  are  to  be  reviewed,  and  upon  the  defendant 
in  error,  a  copy  of  the  petition  or  application  for  such 
writ,  together  with  a  copy  of  all  exhibits  attached  thereto, 
and  a  copy  of  the  memorandum  or  brief  filed  in  support 
of  such  application.  Proof  of  such  service  shall  be  filed 
with  the  clerk,  as  in  other  cases." 

§  16.  Form  of  writ. 

Writs  of  certiorari  are  styled  ''In  the  Name  of  the  Peo- 
ple of  the  State  of  Michigan, ' '  have  the  seal  of  the  court 
affixed  thereto  or  impressed  thereon,  which  is  made  con- 
clusive evidence  that  the  writ  is  issued  by  the  court," 
are  tested  of  the  day  when  issued,  and,  in  the  supreme 
court,  must  be  made  returnable  at  the  office  of  the  clerk 
of  the  supreme  court  on  a  day  certain,  either  in  vacation 
or  in  term,  not  less  than  ten  days  nor  more  than  forty 
days  from  the  issuance  thereof."  But  a  shorter  time  may 
be  fixed  by  the  oi-rler  of  tlie  court. ^' 

llJud.    Act,    c-h.    1,    §15;    Comp.  12  Sup.  Ct.  Rule  4. 

Laws  1915,  §  12020.  13  Sup.   Ct.  Rule  4. 


§  17  Ceetiorari  287 

In  the  circuit  court,  writs  of  certiorari  must  be  made 
returnable  and  service  thereof  made  within  such  time  as 
the  circuit  court  shall  upon  each  occasion  direct.^* 

Form  of  Writ  of  Certiorari  from  Supreme  Court 
In  the  Name  of  the  People  of  the   State  of  Michigan. 

To   : 

We,  being  willing,  for  certain  causes,  that  it  should  be  certified  to  our 
Supreme  Court  what  proceedings  have  been  had  before  you,  and  what 
has  been  done  by  you  in  the  (specify  the  cause  or  matter),  do  therefore 
command  you  that  you  distinctly  and  openly  certify  the  records  and  pro- 
ceedings in  said  matter  to  the  said  Supreme  Court,  before  the  Justices 
thereof,   that    they   may   have   them   at    the    Supreme   Court   Eoom,   in   the 

Capitol,  in  the  City  of  Lansing,  on  the day  of ,  A.  D , 

that  said  Court  may  cause  to  be   done  thereupon   wliat  of  riglit  ought  to 
be  done;   and  have  you  then  and  there  this  writ. 

Witness,   Hon.   C.   G.,   chief   justice   of   our  Supreme   Court,   at   Lansing, 

this day  of ,  in  the  year  of  our  Lord 

C.  H., 
Clerk  Supreme  Court. 

I  hereby   certify   that  the   foregoing  writ   was   duly   allowed   by    , 

on  the   day  of ,  A.  D 

C.  H., 
Clerk. 

§  17.  Service  of  writ. 

The  writ,  together  with  a  copy  of  the  papers  on  which 
it  was  allowed,  must  be  served  upon  the  defendants.  As 
no  error  can  be  relied  on  which  is  not  specified  in  the  affi- 
davit on  which  the  writ  was  allowed,  tbe  defendants  are 
entitled  to  have  their  attention  directed  to  what  tliey  are 
called  upon  to  explain,  and  they  cannot  know  this  with- 
out service  of  the  papers  on  which  the  writ  is  allowed." 
If  the  writ  alone,  without  a  copy  of  such  papers,  is  served, 
the  defendants  are  not  ordinarily  bound  to  take  any  no- 
tice of  it;  ^^  but,  where  a  writ  of  certiorari  identifies  the 
documents  to  bo  returned,  the  defendant  must  return 
them,  even  thougli  no  copy  of  the  papers  on  which  the 

14  Cir.  Ct.  Kule  50,  §  1.  1918  as  to  service  of  copy  of  peti- 

15  Nightingale     v.     Simmons,     66       tion,  exhibits  and  briefs. 

Mich.    528.      See    also    §  15,      ante,  16  Parman  v.  Boards  of  School  In- 

fer  new    rule    of    court   adopted    in       spectors,  49  Mich.  63. 


288  Certiorari  §  17 

writ  was  allowed  be  served  with  the  writ.^'  The  writ 
should  be  served  within  the  time  limited  therefor  or  it 
will  be  ineffective.^^ 

The  service  of  a  writ  of  certiorari  operates  to  stay  all 
further  proceedings  of  the  court,  tribunal,  board  or  officer 
to  whom  it  is  directed,  from  the  time  of  such  service.^' 
No  bond  is  required,  as  in  the  case  of  a  writ  of  error,  to 
effectuate  this  result. 

§  18.  Notice  of  issuance  of  writ. 

In  the  supreme  court,  the  appellant  must  cause  notice 
of  the  issuance  and  the  date  and  return  day  of  the  writ 
to  be  served  on  the  adverse  party  or  his  attorney  in  the 
court  below  within  ten  days  after  the  issuance  thereof; 
and  an  affidavit  of  such  service  is  required  to  bo  filed  in 
the  office  of  the  clerk  of  the  supreme  court  on  or  before 
the  return  day  thereof.^" 

§  19.  Time  for  return. 

In  the  sui)reme  court,  the  appellant  must  cause  the  writ 
of  certiorari,  with  the  return  containing  a  transcript  of 
the  record  or  proceedings  in  the  court  below,  to  be  filed 
in  the  clerk's  office  on  or  before  the  return  day  mentioned 
in  the  writ.^^  The  time  for  returning  a  writ  of  certiorari 
may  be  extended  by  one  of  the  justices  of  the  supreme 
court  or  a  circuit  judge  for  good  cause  shown.  The  order 
granting  such  extension  is  required  to  be  returned  with 
the  other  papers  to  the  clerk  of  the  supreme  court,  and  the 

n  Whistler      v.      Lenawee      Drain  County,  18  Cal.  671;   Commonwealth 

Com'rs,  39  Mich.  303.  v    Kistler,  149   Pa.  St.  345. 

18  Morrison    v.    Emsley,    53    Mich.  Stay   on  order   of   supreme   court, 

564.  see   Jud.   Act,   ch.   50,    §14;    Comp. 

19Bac.     Abr.     "Certiorari,"     G;  Laws  1915,   §13749. 

Patchin  v.  Mayor,  etc.,  of  Brooklyn,  20  Sup.   Ct.   B.ule   5.      How   far   is 

13     Wend.     (N.     Y.)     664;     In     re  this   rule  affected  by  the  new   1918 

Adams,     10     Pick.      (Mass.)      273;  rule  of  court   (see  §  15,  ante)  ? 

King.sland  v.  Gould,  6  N.  J.  L.  161;  21  Sup.   Ct.  Eule  6. 
California,    etc.,    R.    Co.    v.    Butte 


§  20  Certioraei  289 

time  fixed  by  such  order  for  the  return  will  be  treated 
in  all  respects  as  if  it  had  been  the  original  return  day. 
Such  extension  can  be  had  only  upon  proper  notice  to  the 
adverse  party.^^ 

§  20.  Who  should  make  return. 

The  person  or  persons  in  whose  hands  remains  the  rec- 
ord of  the  proceedings  which  it  is  sought  to  have  re- 
viewed are  the  proper  ones  to  make  the  return  to  the 
writ.^^  Thus,  an  ex-circuit  judge  cannot  make  return  to 
a  certiorari  directed  to  the  circuit  court  over  which  he 
formerly  presided,  even  of  a  proceeding  had  before  him 
when  holding  such  court,  and,  should  he  attempt  to  do  so, 
his  answer  would  be  regarded  as  a  mere  voluntary  pro- 
ceeding and  not  a  component  part  of  the  return.^*  Even 
the  personal  answer  of  the  judge  of  a  circuit  court  as  to  a 
proceeding  had  before  him  will  not  be  regarded  as  a  com- 
ponent part  of  a  return  to  a  certiorari  directed  to  the 
court  over  which  he  presides.^^  The  return  of  a  court, 
board  or  body  to  a  writ  of  certiorari  should  always  ap- 
pear to  be  the  return  of  such  court,  board  or  body,  and  not 
merely  that  of  the  clerk,  though  the  latter  may  authenti- 
cate the  papers  attached  by  his  certificate.  If  it  is  the 
duty  of  the  clerk  to  keep  a  record  of  the  proceedings,  he 
might  perhaps  certify  that  he  made  the  return  by  the 
direction  of  the  court,  board  or  body  of  which  he  is  clerk, 
without  the  signatures  of  the  members  thereof;  but  it  is 
quite  easy  for  them  to  make  a  return  themselves,  though 
composed  of  the  records  kept  by  the  clerk,  by  stating  over 
their  signatures  substantially,  ' '  Our  return  to  the  within 
writ  appears  by  the  schedules  hereto  attached,  certified 

22  Sup.   Ct.  Rule  7.  24  People    v.    Brcnnan,    79    Mich. 

23  Crawford  v.  Scio,  etc.,  Tp.  362.  See  also  Wliistlcr  v.  Wilson, 
Boards,   22   Mich.   405;    Whistler   v.       39  Mich.  121. 

Wilson,    39    Mich.    121 ;    Jackson    v.  25  Woodin    v.    Phoenix,    41    Mich. 

Peaple,  9  Mich.  111.  6.'-,;l. 

1  Abbott— 19 


290  Certiorari  §  20 

by  our  clerk.  "^^  And  where  any  proceeding  before  a 
circuit  court  is  to  be  reviewed,  the  circuit  judge  is  the 
only  party  who  has  authority  to  determine  by  a  return  to 
the  writ  the  questions  involved.^''^  But  the  personal  an- 
swer of  a  judge,  where  the  writ  is  directed  to  the  court,  is 
not  properly  part  of  the  return. ^^ 

§  21.  Form  and  contents  of  return. 

The  writ  of  certiorari  commands  the  defendant  to 
whom  it  is  directed  to  certify  to  the  supreme  or  circuit 
court  the  record  or  proceedings  which  it  is  sought  to  re- 
view, and  it  is  the  duty  of  the  defendant,  in  obedience  to 
such  command,  to  make  a  return  containing  a  transcript 
of  such  record  or  proceedings.  The  return  need  not  be 
sworn  to  and  need  not  be  in  any  particular  form.  It 
should  state  facts  and  not  conclusions  of  law.^^  All 
record  evidence  should  be  embodied  in  exhibits  in  the 
shape  of  certified  or  otherwise  authenticated  copies,  and 
not  by  mere  recitals  of  its  existence.^"  The  affidavits  of 
third  persons,  though  referred  to  in  the  return  as  accom- 
panying it  for  the  purpose  of  responding  to  matters  of 
fact  set  up  in  the  petition,  cannot  be  regarded  as  con- 
stituting a  part  of  the  return  and  will  not  be  considered 
by  the  reviewing  court. ^^  Where  the  writ  requires  the 
evidence  to  be  certified,  so  far  as  necessary  to  present 
questions  of  law  arising,  it  is  not  necessary  that  the  sten- 
ographer's notes  of  the  testimony  before  the  probate 
judge  be  included  in  the  return. ^^  Where  the  return  does 
not  show  that  the  whole  of  the  testimony  was  returned, 

26  Roberts  v.  Cottrcllville  Highway  29  Purely  v.  Martin,  31  Mich.  455; 
Com'rs,    24    Mich.    182;     Curry    v.  People  v.  Burnap,  38  Mich.  350. 
Place,     99     Mich.     524.       See     also  30  Cronin   v.  Kalkaska   Sup'rs,   58 
Stevens    v.    Ottawa    Probate   Judge,  Mich.  448;   Hewitt  v.  Oakland  Pro- 
154  Mich.  509.  bate  Judge,   67  Mich.  1. 

27  Stevens      v.      Ottawa      Probate  31  North  v.   Joslin,   59  Mich.   624. 
Judge,  154  Mich.  509.  82  Traverse  City,  K.  &  G.  R.   Co. 

28Woodin    v.    Phoenix,    41    Mich.       v.  Seymour,  81  Mich.  378. 
655. 


§  22  Certiorari  291 

it  will  be  presumed  that  there  was  sufficient  evidence  to 
sustain  the  finding  of  the  jury  or  the  court,  as  the  case 
may  be.^*  Where  the  testimony  returned  is  insufficient 
of  itself  to  support  the  order  complained  of,  a  reversal  be- 
cause thereof  is  not  proper  where  the  return  shows  that 
all  the  testimony  is  not  returned  and  that  evidence  was 
introduced  sustaining  the  allegations  of  the  moving 
party.^*  But  where  the  making  of  a  record  of  the  testi- 
mony was  dispensed  with  by  mutual  consent,  plaintiif 
cannot  complain  that  the  evidence  is  not  returned.^^ 

The  return  must  ordinarily  show  everything  on  which 
the  plaintiff  relies  for  relief,  and  cannot  be  supplemented 
by  his  affidavit  for  the  writ.^^  Statements  in  the  affidavit 
for  the  writ,  where  not  adopted  by  the  return  as  true, 
cannot  be  considered  by  the  reviewing  court.^'' 

§  22.  Further  return. 

If  the  defendant  does  not  make  a  full  and  satisfactory 
return  to  the  writ  of  the  matters  and  errors  stated  in  the 
affidavit,  he  may  be  compelled  to  do  so  by  an  order  made 
by  the  court  on  the  motion  of  the  appellant.  It  is  evident 
that,  inasmuch  as  the  appellant  must  show  by  the  return 
the  existence  of  the  defects  and  errors  of  which  he  com- 
plains, he  should,  in  all  cases  in  which  the  return  as  orig- 
inally made  is  insufficient  by  reason  of  its  incompleteness 
to  fulfill  this  purpose,  procure  an  order  of  the  court  for  a 
further  return.^®    The  affidavit  cannot  be  used  to  estab- 

33  Snow  V.  Perkins,  2  Mich.  238;  36  Whitbeek  v.  Village  of  Hud- 
Gaines  v.  Betts,  2  Doug.  98;  Case  son,  50  Mich.  86;  Hewitt  v.  Judge 
V.  Frey,  24  Mich.  251;  The  City  of  of  Probate  of  Oakland  County,  67 
Erie,  27  Mich.   479.     See  also   Tay-  Mich.   1. 

lor  V.  Shimmel,  107  Mich.  676.  Com-  37  Tonilin  v.  Fisher,  27  Mich.  524. 

pare    Fruitport     Tp.     v.     Muskegon  38Hitelicoek    v.    Sutton,   28   Mich. 

Circuit  Judge,  90  Mich.  20.  86;    Whitbeek    v.    Hudson    Common 

34  Taylor  v.  Shimmel,  107  Mich.  Council,  50  Mich.  86;  McGurrin  v. 
676.  Grand  Rapids  Tp.  Board,  186  Mich. 

36  Burt  V.  Iron  County  Sup'rs,  475;  Gordon  v.  Sibley,  59  Mich. 
108  Mich.  523.  250. 


292  Certioraei  §  22 

lisli  a  fact  not  shown  by  the  return;  ^^  but  the  affidavit 
will  be  taken  as  true  if  not  contradicted  by  the  return." 
If  the  return  is  insufficient,  the  court  issuing  the  writ  may 
direct  a  further  return  even  of  its  own  motion.*^  An 
order  for  a  further  return  directed  to  one  who  has  gone 
out  of  office  is  properly  refused,  where  a  personal  return 
is  not  required,  and  he  made  return  that  he  was  out  of 
office  and  no  longer  had  custody  of  the  papers  and  rec- 
ords.*^ 

§  23.  Conclusiveness  and  effect  of  return. 

The  return  is  conclusive  as  to  matters  of  fact  stated  in 
it,  even  as  against  the  allegations  of  the  affidavit,"  but 
it  cannot  supply  jurisdictional  deficiencies  in  the  pro- 
ceedings to  which  it  relates.**  However,  the  return  is 
not  necessarily  conclusive  as  to  statements  in  the  petition 
that  do  not  go  to  the  merits  but  are  made  merely  by  way 
of  excuse  for  delay."  Affidavits  of  jurors  in  the  case  can- 
not be  heard  to  vary  or  alter  the  return." 

There  is  no  authority  for  directing  or  permitting  the 

39  Hewitt  v.  Oakland  Probate  Co.  v.  Seyniour,  81  Mich.  378;  Tay- 
Jiulge,  67  Mich.  1;  Whitbeck  v.  lor  v.  Shimmel,  107  Mich.  676; 
Hudson  Common  Council,  50  Mich.  Hackett  v.  Brown,  128  Mich.  141; 
86.  Mann  v.  Tyler,  56  Mich.  564;  Young 

40  Wilson  V.  Burr  Oak  Tp.  Board,  v.  Kelsey,  46  Mich.  414. 

87  Mich.  240.  ■  If  false,  the  remedy  of  the  party 

This  is   not   true,   however,   as   to  aggrieved  is  by   action.     Scholtz  v. 

allegations  concerning  which  no  re-  Smith,  119  Mich.  634;  Traverse  City, 

turn  is  required.    McGurrin  v.  Grand  K.  &  G.  R.  Co.  v.  Seymour,  81  Mich. 

Rapids   Tp.  Board,   186   Mich.   475,  378,   and   see   cases  cited   above   in 

479.  this  note. 

41  See  Tomlin  v.  Fisher,  27  Mich.  44  Harbaugh  v.  Martin,  30  Mich. 
524.  234;    McGregor    v.   Gladwin    Sup'rs, 

42 Whistler    v.    Wilson,    39    Mich..  37    Mich.    388;    People    v.    Nankin 

121.  Highway    Com'rs,     14    Mich.     528; 

43  Matthews  v.  Otsego  Sup  'rs,  48  Davison  v.  Davison,  99  Mich.  625. 
Mich.    587;    People    v.    Grimm,    182  45  Burnett    v.    Drain    Com'rs,    56 

Mich.    643;    People    v.    Leavitt,    41  Mich.   374. 

Mich.    470 ;     People    v.    Brown,    54  46  Ringelberg  v.  Peterson,  76  Mich. 

Mich.    15;    Traverse    City,    etc.,    R.  107. 


§  26  Certiorari  293 

framing  of  an  issne  for  the  purpose  of  taking  proofs  in 
certiorari  proceedings.*'' 

§  24.  Striking"  out  return. 

If  the  circuit  judge  returns  immaterial  matters,  they 
will  be  excluded  on  the  hearing,  and  the  return  should 
not  be  stricken  on  motion  because  thereof." 

§  25.  Effect  of  failure  to  make  return. 

If  the  appellant  fails  to  have  the  writ  of  certiorari  re- 
turned on  or  before  the  return  day  thereof,  the  appellee 
may  move  to  have  the  writ  dismissed  for  want  of  prose- 
cution; and  when  a  motion  is  made  to  dismiss,  the  court 
may  grant  or  deny  it  on  such  terms  and  conditions  as  the 
justice  of  the  case  may  require.*® 

§  26.  Assignment  of  errors  and  notice  of  hearing. 

The  errors  upon  which  a  party  relies  must  be  stated  in 
the  affidavit  for  the  writ.  No  other  assignment  of  errors 
is  required.^®  Notice  of  hearing  cannot  be  served  until 
after  the  return  day  mentioned  in  the  writ.^^  In  the  su- 
preme court,  such  notice  must  be  given  at  least  thirty 
days  before  the  first  day  of  the  term  at  which  the  argu- 
ment is  desired;  ^^  but  where  the  writ  has  been  allowed  to 
review  the  action  of  the  circuit  court  in  allowing  or  deny- 
ing a  writ  of  mandamus,  the  cause  when  returned  into  the 
supreme  court  may  be  noticed  for  hearing  as  a  motion  by 
either  party  on  any  motion  day  thereafter  unless  other- 
wise ordered.^^ 

In  the  circuit  court,  certiorari  proceedings  stand  for 
hearing  upon  the  return  day  of  the  writ  without  notice 

47  McGurrin  v.  Grand  Eapids  Tp.  See  also  Scott  v.  Brown,   175  Mich. 
Board,  186  Mich.  475,  478.  447. 

48  Stevens      v.      Ottawa     Probate  51  Miles  v.  Goffinit,  16  Mich.  280. 
Judge,  154  Mich.  509.  52  Sup.   Ct.   Eule   34. 

49  Sup.  Ct.  Rule  8.  53  Sup.   Ct.  Rule  12. 

50  Stokes  V.  Jacobs,  10  Mich.  290. 


294  Certiorari  §  26 

of  trial  or  hearing  unless  the  court  for  cause  shown  shall 
order  a  postponement  of  such  hearing.^* 

§  27.  Printing  of  record  and  briefs. 

In  the  supremo  court,  the  record,  or  so  much  of  it  as  is 
necessary  to  present  the  points  raised,  and  the  briefs  of 
counsel  must  be  printed  as  in  the  case  of  other  calendar 
causes." 

§  28.  What  errors  will  be  considered. 

The  court,  in  reviewing  a  case  on  certiorari,  will  con- 
sider only  such  alleged  errors  and  defects  in  the  record 
and  proceedings  as  are  pointed  out  in  the  affidavit,*^  and 
their  inquiry  is  directed  to  the  ascertainment  of  such  de- 
fects or  errors  as  are  shown  by  the  return  to  the  writ,  and 
are  of  such  a  nature  as  to  invalidate  the  proceedings  com- 
plained of.  The  return  must  show  everything  on  which 
the  plaintiff  relies  for  relief.  He  cannot  rely  upon  the 
affidavit  for  the  certiorari  to  supply  the  deficiencies  of 
the  return." 

The  court  will  not  only  inquire  into  the  jurisdiction  of 
the  inferior  tribunal,  but  also  into  errors  of  law  occurring 
in  the  course  of  the  proceedings  and  affecting  the  merits 
of  the  case; "  but  they  will  review  questions  of  law  only. 

B4  Cir.  Ct.  Eule,  50,  §  4.  Hobson,    48    Mich.    27 ;    Eawson    v. 

66  Sup.    Ct.   Eule   56.  McElvaine,  49   Mich.   194 ;   Mann  v. 

66  Grand  Bapids,  etc.,  E.  Co.  v.  Tyler,  56  Mich.  564;  Hewitt  v. 
Weidcn,  69  Mich.  572;  People  v.  Oakland  Probate  Judge,  67  Mich. 
Hobson,  48  Mich.  27;  Witherspoon  1;  Powers  v.  Eusaell,  26  Mich.  179; 
V.  Clegg,  42  Mich.  485;  Oentle  v.  Knapp  v.  Gamsby,  47  Mich.  375: 
Colfax  School  Inspectors,  73  Mich.  Stoll  v.  Padley,  98  Mich.  13. 
40;  Davison  v.  Otis,  24  Mich.  23;  58  Jackson  v.  People,  9  Mich.  111. 
Booker  v.  Grand  Eapids  Medical  As  a  general  rule,  no  error  oc- 
College,  156  Mich.  95;  Woodmerc  curring  in  the  course  of  the  pro- 
Cemetery  V.  Eouls,  104  Mich.  595.  ceedings,  as  distinguished  from  error 

67Whitbock    v.    Hudson    Common  affecting    the    jurisdiction,    will    be 

Council,  50  Mich.  86;  Forbes  Litho-  considered  unless  objection  was  duly 

graph  Mfg.  Co.  v.  Winter,  107  Mich.  made  in  the  inferior  tribunal.     Gar- 

116;  McGurrin  v.  Grand  Eapids  Tp.  vin  v.  Gorman,  63  Mich.  221. 
Board,    186    Mich.    475;    People    v. 


§  28  Certiorari  295 

Questions  of  fact  will  not  be  considered.^^  The  evidence 
will  be  reviewed  only  to  determine  whether  there  is  an 
entire  absence  of  evidence  to  support  any  material  fact.°° 
The  weight  of  evidence  or  the  credibility  of  witnesses 
will  not  be  passed  upon,^^  Rulings  upon  the  admission  or 
exclusion  of  evidence  may  be  reviewed,^^  as  a  general 
rule,  but  it  is  held  that  the  rulings,  either  of  a  circuit 
court  commissioner  or  of  a  circuit  judge,  in  regard  to 
admitting  evidence  in  proceedings  for  the  dissolution  of 
an  attachment,  will  not  be  reviewed  on  certiorari.^^  Dis- 
cretionary matters  cannot  be  reviewed.^*  The  constitu- 
tionality of  the  statute  repealing  the  act  under  which  a 
party  was  appointed  may  be  reviewed,^^  as  may  questions 
on  which  the  trial  judge  refuses  to  pass  on  the  ground 
that  the  case  would  be  appealed.®^ 

Form  of  Judgment  on  Certiorari  Affirming  Judgment  Below 

(Title  of  cause.) 

Thts  cause  having  been  duly  brought  on  to  argument,  and  the  record 
and  proceedings  as  well  as  the  judgment  given  in  the  court  below  having 
been  seen  and  fully  understood  by  the  court  now  here,  and  mature  de- 
liberation being  had  thereon,  and  it  appearing  to  the  court  that  there 
is  no   error,  either   in   the   record   and   proceedings  aforesaid   or  in   giving 

69  Collier  v.  Board  of  St.  Charles  62  Jackson  v.  People,  9  Mich.  11] 

Tp.,   147   Mich.   688;    Schall  v.   Bly,  But    certiorari    is    discouraged    for 

43   Mich.   401 ;    McGurrin    v.   Grand  this   purpose.      O  'Hara    v.    Mernan, 

Rapids  Tp.  Board,  186  Mich.  475.  79  Mich.  222. 


60  Jackson  v.  People,  9  Mich.  Ill 
Lynch  v.  People,  16  Mich.  472 
Hyde  v.  Nelson,  11  Mich.  353 
Brown  v.  Blanchard,  39  Mich.  790 


63  Schall  v.  Bly,  43  Mich.  401; 
Lord  V.  Wirt,  96  Mich.  415;  Rickel 
v.   Strelinger,  102  Mich.  41. 

64  Jackson  v.  People,  9  Midi.  Ill; 


Linn  v.  Roberts,  15  Mich.  443;  Cor-  Van  Renselaer  v.  Wliiting,  12  Mich, 

rie  v.  Corrie,  42   Mich.   509;    Schall  449;    Campau    v.    Coatos,    17    Mich, 

v.  Bly,  43  Mich.  401.  235;    Brody   v.   Township   Board   of 

61  Brown   v.   Blanchard,   39   Mich.  Ponn  Tp.,  32  Mich.  272;   Stimson  v. 

790;    Sheldon   v.   Stewart,   43  Mich.  Michigan  Shingle  Co.,  71  Mich.  374; 

574;  Rowe  v.  Kellogg,  54  Mich.  207;  Fellows  v.  Canncy,   75  Mich.  445. 

Carver    v.    Chapell,    70    Mich.    49;  66  Fillmore     v.     Van     Horn,     129 

State    Bank    v.    Whittle,    41    Mich.  Mich.  52. 

365;    Powers  v.   O'Brien,   44   Mich.  66  West  Bloomfield  Tp.  v.  Detroit 

317;    Genesee  County  Sav.  Bank   v.  United  Ry.  Co.,  146  Mich.  198. 
Michigan  Barge  Co.,  52  Mich.  164. 


296  Certiorari  §  28 

the  judgment  aforesaid;  therefore,  it  is  considered  that  the  judgment 
aforesaid,  in  form  aforesaid,  be  in  all  things  affirmed  and  stand  in  full 
force  and  effect;  and  it  is  further  ordered  and  adjudged  that  the  said 
defendant  do  recover  against  the  said  plaintiff  his  costs  and  charges  by 
him  about  his  suit  in  this  behalf  expended,  to  be  taxed,  and  that  the  said 
defendant  have  execution  therefor. 

Form  of  Judgment  on  Certiorari  Reversing  Judgment  Below 

(Title  of  cause.) 

This  cause  having  been  duly  brought  on  to  argument,  and  the  record 
and  proceedings,  as  well  as  the  judgment  given  in  the  court  below,  hav- 
ing been  seen  and  fully  understood  by  the  court  now  here,  and  it  appear- 
ing that  there  is,  in  the  record  and  proceedings  aforesaid,  and  in  giving 
the  judgment  aforesaid,  manifest  error;  therefore,  it  is  considered  that 
the  judgment  aforesaid,  for  the  errors  aforesaid,  be  reversed  and  annulled 
and  altogether  held  for  nothing;  and  it  is  further  ordered  and  adjudged  that 
the  said  plaintiff  do  recover  against  the  said  defendant  his  costs  and 
charges  by  him  about  his  suit  in  this  behalf  expended,  to  be  taxed,  and 
that  the  said  plaintiff  have  execution  therefor. 

§29.  Judgment. 

Certiorari  is  not  a  flexible  remedy.  The  court  will 
3itlier  quash  or  refuse  to  quash  the  proceedings  under 
/eview,®'''  and,  if  the  proceedings  are  quashed,  it  is  not 
usual  for  the  court  to  order  a  new  trial,  for  the  reason 
that  a  reversal  does  not  usually  leave  the  proceedings  in 
such  condition  that  a  new  trial  can  be  had;  but,  if  it  does, 
there  is  no  reason  why  a  new  trial  should  not  be  ordered 
in  the  same  manner  as  on  a  writ  of  error,  and  this,  in  fact, 
is  sometimes  doue.^® 

In  one  case  where  certiorari  was  sued  out  where  in- 
stead a  writ  of  error  was  the  proper  method  of  review, 
the  supreme  court  said:  ''No  rule  having  been  made 
governing  the  practice  in  such  cases,  and  no  injury  re- 
sulting from  such  a  course,  we  should  treat  the  writ  of 

67  Whitbeck  v.  Hudson  Common  manded,  in  a  proper  case,  to  in- 
Council,  50  Mich.   86.  corporate  therein  matter  which   has 

68  Cross   V.   People,   10   Mich.   24;  come   into   existence   since  the  hear- 
People  V.  Wliite,  53  Mich.  537;  Cus-  ing,  and  to  order  a  rehearing  in  the 
ter  Tp.  V.  Dawson,  178  Mich.  367.  court  below  on  the  amended  plead- 
On  certiorari  to  review  mandamus  ings.    Leach  v.  Davy,  199  Mich.  378. 

proceedings,  the  record  may  be  re- 


§  31  Certioeaei  297 

certiorari  in  this  case  as  if  it  were  a  writ  of  error  and 
enter  judgment  accordingly.  This  decision  should  and 
will  have  all  of  the  force  and  effect  of  a  rule  of  court 
governing  the  practice  in  similar  cases. ' '  ^^ 

§30.  On  certiorari  to  Industrial  Accident  Board. 

The  court  is  not  limited  to  an  affirmance  or  reversal  of 
the  determination  of  the  board,  but  is  expressly  vested  by 
statute  with  the  further  power  to  make  such  orders  in 
respect  to  the  case  as  justice  may  require.'''"  The  court 
may,  therefore,  not  only  reverse  and  set  aside  the  deter- 
mination of  the  board,  but  may  direct  the  board  specific- 
ally what  order  to  make  in  the  cause.'^  Any  such  direc- 
tion must  be  based  either  upon  the  finding  of  the  board 
or  the  undisputed  evidence,  for  the  court  has  no  power 
to  weigh  conflicting  evidence.''^ 

§31..  Costs. 

The  party  prevailing  on  a  writ  of  certiorari  in  any  pro- 
ceeding of  a  civil  nature  is  entitled  to  his  costs  against 
the  adverse  party  in  all  cases;  and,  in  case  the  writ  ap- 
pears to  have  been  brought  for  the  purpose  of  delay  or 
vexation,  the  court  may  award  double  costs  to  the  pre- 
vailing party.'''  Where,  however,  the  proceedings  com- 
plained' of  were  set  aside  as  being  without  jurisdiction, 
but  the  want  of  jurisdiction  was  one  arising  rather  from 
a  defect  in  the  statute  than  from  a  non-compliance  with 
the  statute,  the  prevailing  party  was  allowed  only  the 
costs  in  the  supreme  court,  and  not  the  costs  of  the  pro- 
ceedings complained  of.''*    Where  the  appellant  had  an- 

69  Township  of  Custer  v.  Dawson,  73  Jud.   Act,   ch.   50,   §16;    Comp. 
178  Mich.  367,  376.                                     Laws  1915,  §  13751. 

70  Comp.  L.  1915,  §  5465.  74  McCleary  v.  Hartwell,  25  Mich. 

71  How.     Stat.     (2nd    ed.)     3980;       139, 
Comp.  Laws  1915,  §  5465. 

72  Andrewjwski  v.  Wolverine  Coal 
Co.,  182  Mich.  298. 


298  Certiorari  §  31 

other  remedy  under  the  statute  and  showed  no  reason 
why  he  did  not  avail  himself  of  it  instead  of  resorting  to 
a  certiorari,  he  will  not,  on  reversal,  be  allowed  to  recover 
costs,  the  rule  being  that  the  court  will  not  award  costs  to 
a  party  who  presumably  has  come  into  the  supreme  court 
without  necessity.'^  Where  the  statute  under  which  the 
proceedings  complained  of  were  taken  had  never  been 
construed,  the  court,  upon  quashing  them,  withheld  costs 
to  the  prevailing  party.'^ 

§  32.  Motion  to  dismiss  writ. 

If  the  writ  has  been  irregularly  obtained  or  improvi- 
dently  allowed,  the  court  will,  on  motion,  make  an  order 
dismissing  it.''"''  The  motion  should  state  the  grounds 
upon  which  it  is  based,  and,  if  it  does  not,  will  be  denied," 
but  questions  which  relate  to  the  merits  of  the  case, 
rather  than  to  any  informality,  irregularity  or  impro- 
priety in  obtaining  the  allowance  and  issuance  of  the 
wnt  itself,  cannot  be  considered  on  a  motion  to  dismiss 
the  writ.  Such  questions  must  be  disposed  of  on  the 
hearing.''® 

The  objection  that  certiorari  is  not  the  proper  remedy 
must  be  made  by  motion  to  dismiss  and  cannot  be  made 
for  the  first  time  in  the  briefs.'"  So  the  objection  .that  the 
officer  allowing  the  writ  had  no  authority  to  do  so  can  be 
raised  only  by  a  motion  to  dismiss.'^    If  the  writ  has  been 

76  Adams  v.  Abram,  38  Mich.  302.  78  Jaquith  v.  Hale,  30  Mich.  163. 

76  Griffin  v.  Helme,  94  Mich.  494.  79  Eowe   v.    Eowe,   28   Mich.   353; 

77  Greenville  Gas,  etc.,  Co.  v.  City  Maybee    v.    Miner,    44    Mich.    207 ; 
of  Greenville,   165   Mich.   135;    Far-  Loree  v.  Smith,  100  Mich.  252. 

rell  V.  Taylor,  12  Mich.  113;   In  re  80  Moinet   v.   Burnham,   Stoepel  & 

Lantis,  9  Mich.  324;  Antiau  v.  Na-  Co.,    143    Mich.    489;    In   re    Robin- 

deau,  53  Mich.  460.  son's  Estate,  6  Mich.  137.     Contra, 

If    only    a    moot    question    is    in-  see  Eowe  v.  Eowe,  28  Mich.  353. 

volved,  the   writ  will  be   dismissed.  81  Tweddle  v.   Judge   of  Superior 

Carlson   v.   Wyman,   189   Mich.   402;  Court   of   Grand   Eapids,   134   Mich. 

Schouwink    v.    Ferguson,   191    Mich.  237. 
284. 


Chancery 


299 


issued  in  an  improper  case,  the  defendant  may  move  to 
quash  it,  and  the  court  will  quash  it  even  after  a  return 
and  a  hearing  upon  the  merits.^^  The  writ  will  be  quashed 
when  it  has  been  prematurely  issued,  or  when  allowed  by 
an  officer  having  no  jurisdiction  to  allow  it,  or  when  for 
any  reason  it  has  been  improperly  allowed.  On  such  a 
motion,  the  merits  will  not  be  considered.*'  A  motion 
to  dismiss  a  writ  on  the  ground  of  plaintiff's  acquiescence 
in  the  determination  will  not  be  granted  unless  such  al- 
leged acquiescence  is  undisputed.**  Where  the  parties 
stipulated  for  a  dismissal,  it  will  not  be  refused  merely  on 
the  protest  of  an  attorney  for  one  of  the  parties,  whom 
the  record  does  not  show  will  be  injured  by  the  dis- 
missal.*^ 

In  the  supreme  court,  when  a  motion  is  made  to  dis- 
miss a  writ  of  certiorari,  "the  court  may  grant  or  deny 
the  same  on  such  tenns  and  conditions  as  the  justice  of 
the  case  may  require."*^ 


See  Jury. 


See  Judges. 


See  Attorneys. 


See  Equity. 


CHALLENGES 


CHAMBERS 


CHAMPERTY 


CHANCERY 


82  Farrell  v.  Taylor,  12  Mich.  113. 

83  Maybee  v.  Miner,  44  Mich.  207; 
Lorce  v.  Smith,  100  Mieh.  252. 

84  Crawford    v.    Township    Boards 
of  Scio  and  Webster,  22  Mich.  405. 


86  Buchanan  v.  Moore,  113  Mich. 
555. 

86  Sup.  Ct.  Rule  9,  and  see  Ullman 
V.  Sandell,  158  Mich.  396, 


300  Change  of  Venue  §  1 

CHANGE  OF  VENUE 

§    1.  Scope  of  article. 

§    2.  Historical. 

§    3.  Statutory  provisions. 

§    4.  Grounds. 

§    5.  Who  may  move. 

§    6.  Motion  and  notice  of  motion. 

§    7.  Supporting  affidavits. 

§    8.  Affidavits  to   oppose  the  motion. 

§    9.  Stipulations  for  change. 

§  10.  Discretion  of  court. 

§  11.  Effect  of  change. 

Cross-Eeferences:  Venue;  Judges  (transfer  of  cases  because  of  dis- 
qualification of  judge). 

§  1.  Scope  of  article. 

This  article  does  not  include  transfer  of  causes  be- 
cause of  disqualification  of  the  judge  ^  nor  transfer  of 
equity  suits  to  the  law  side  of  the  court  or  vice  versa.^ 

§2.  Historical. 

The  rule  of  common  law^  pleading  requiring  the  pleader 
to  allege  the  place,  that  is,  to  lay  the  venue,  to  each  af- 
firmative traversable  allegation,  has  been  already  no- 
ticed.^ The  original  object  of  thus  laying  a  venue  was 
to  determine  the  place  from  which  the  venire  facias 
should  direct  the  jurors  to  be  summoned  in  case  the 
parties  should  put  themselves  upon  the  country,  for,  by 
tlie  ancient  practice,  w^ien  juries  were  composed  of  per- 
sons cognizant  of  their  own  knowledge  of  the  fact  in  dis- 
pute, it  was  necessary  to  summon  the  juiy  from  the 
venue  (vixne  or  vicinia,  that  is,  neighborhood,)  which 
had  been  laid  to  the  particular  fact  in  issue,  and  from  the 
venue  of  the  parish,  town  or  hamlet  as  well  as  the  county. 
But,  at  a  very  early  time,  the  practice  in  this  respect  was 
radically  changed,  so  that  jurors  began  to  be  summoned 
no  longer  as  witnesses  cognizant  of  the  fact  of  their  own 

1  See  Judges.  3  See  Pleading. 

2  See  Actions. 


§  2  Change  of  Venue  301 

knowledge,  but  as  judges  to  receive  the  fact  from  the 
testimony  of  others  judicially  examined  before  them. 
When  this  change  had  been  effected,  the  reason  for  re- 
quiring them  to  be  summoned  from  the  immediate  neigh- 
borhood where  the  fact  occurred  ceased  to  apply,  and,  by 
virtue  of  the  statute  16  &  17  Car.  II,  c.  8,  the  practice 
arose  of  having  issues  of  fact  tried,  not  by  a  jury  sum- 
moned from  the  venue  laid  to  the  fact  in  issue,  but  by  one 
summoned  from  the  venue  in  the  action. 

Before  this  change  in  the  constitution  of  juries,  the 
venue  was  always  laid  in  the  true  place  where  the  fact  oc- 
curred, but,  when,  in  consequence  of  the  change,  the  rea- 
son ceased  to  operate,  a  distinction  arose  between  facts 
of  which  the  place  of  occurrence  was  material,  comprising 
matters  relating  to  realty  and  hardly  any  others,  and 
facts  of  which  the  place  was  immaterial,  and  which 
might  be  supposed  to  happen  anywhere.  Facts  of  the 
former  sort  were  appropriately  designated  as  ''local," 
while  those  of  the  latter  sort  were  as  properly  denomi- 
nated "transitory,"  and,  accordingly,  actions  began  to 
be  classed  as  either  ''local,"  being  actions  wherein  the 
principal  facts  on  which  they  were  founded  were  local, 
and  ' '  transitory, ' '  in  which  any  principal  fact  was  of  the 
transitory  kind.  And  the  rule  arose  that,  in  local  actions, 
where  the  possession  of  land  or  damages  affecting  land 
were  to  be  recovered,  the  plaintiff  must  declare  his  in- 
jury to  have  happened  in  the  very  county  and  place 
where  it  really  did  happen,  that  is,  he  must  lay  the  venue 
truly,  while,  in  transitory  actions,  as  debt,  detinue  and 
the  like,  the  plaintiff  need  not  lay  the  venue  truly,  but 
might  declare  in  what  county  he  pleased.*  It  is  evident, 
therefore,  that,  as  the  issue  was  to  be  tried  in  the  venue 

4  3   Cooley's  Bl.  Comm.   294.     An  48.      Otherwise   it   is   local.     Gunter 

action  is  transitory  when  the  trans-  v.   Dranbauer,   86   Md.   1;    Perry   v. 

action   on  which  it  is  based  might  Seaboard,    etc.,   R.    Co.,    153    N.    C. 

have  taken  place  anywhere.  Little  117;  Crook  v.  Pitcher,  61  Md.  510. 
V.    Chicago,   etc.,   R.    Co.,   65   Minn. 


302  Change  of  Venue  §  2 

of  the  action,  the  plaintiff  in  a  transitory  action  was  en- 
abled to  have  the  issue  tried  in  whatever  county  he 
pleased  by  simply  alleging  in  his  declaration  that  the  fact 
occurred  in  such  county,  whether  it  really  did  or  not.  In 
this  state  of  the  law,  about  the  reign  of  James  I,  the 
courts,  conceiving  themselves  empowered,  as  it  is  said,^ 
so  to  do  by  the  statutes  6  Rich.  II,  c,  2,  and  4  Hen.  IV,  c. 
18,  began  a  practice  by  which  defendants  were  enabled 
to  protect  themselves  from  the  inconvenience  resulting 
from  the  venue  being  laid  contrary  to  the  fact  and  to  en- 
force, if  they  wished,  a  compliance  with  the  stricter  and 
more  ancient  system,*  By  this  practice,  if  the  plaintiff  in 
a  transitoiy  action  laid  a  false  venue,  the  defendant 
might  make  an  affidavit  that  the  cause  of  action,  if  any, 
arose,  not  in  that,  but  in  another,  county,  and,  upon  such 
affidavit,  might  move  the  court  to  have  the  venue  changed 
to  the  proper  county.  Such  motion  the  court  usually 
granted  and  obliged  the  plaintiff*  to  amend  his  declaration 
in  this  particular,  unless  he,  on  the  other  hand,  would 
undertake  to  give  at  the  trial  some  material  evidence 
arising  in  the  county  where  he  had  laid  the  venue.'  Some- 
times, also,  the  courts  would  order  a  change  of  venue, 
even  from  the  proper  jurisdiction,  upon  a  showing  that  a 
fair  and  impartial  trial  could  not  be  had  therein;  but  the 
change  of  venue  was  a  matter  which  rested  largely  within 
the  discretionary  power  of  the  court,  which  was  exercised 
according  to  the  circumstances  of  the  case  to  promote  the 
interests  of  justice.® 

§  3.  Statutory  provisions. 

In  Michigan,  the  matter  of  a  change  of  venue  is  regu- 
lated by  statute,  which,  however,  is  merely  declaratory 
of  the  common  law  power  vested  in  the  circuit  courts.® 

5  3  Cooley's  Bl.  Comm.  294.  Dyck,  1  Cow.   (N.  Y.)   600. 

«Steph.  PI.  275.  8  3   Cooley's  Bl.   Comm.  383,  384. 

TSteph.  PI.  275;  3  Cooley's  Bl.  9  People  v.  Peterson,  93  Mich.  27. 
Comm.    294;    Vander    Zee    v.    Van 


§  4  Change  of  Venue  303 

It  is  thus  provided  that  each  of  the  circuit  courts,  ''upon 
good  cause  shown,"  may  change  the  venue  in  any  civil 
cause  pending  therein  and  direct  the  issue  to  be  tried  in 
the  circuit  court  of  another  county,  and  make  all  neces- 
sary rules  and  orders  for  certifying  and  removing  the 
cause  and  all  matters  relating  thereto  to  the  court  in 
which  the  issue  is  ordered  to  be  tried;  and  the  court 
to  which  the  cause  is  so  removed  will  have  full  jurisdic- 
tion of  the  cause  the  same  as  though  the  cause  had  been 
originally  commenced  therein.^° 

The  statute  includes  cases  appealed  from  justice's 
court  and  pending  in  the  circuit  court,"  and  also  applies 
to  mandamus  proceedings  ^^  but  does  not  apply  to  con- 
demnation proceedings." 

§  4.  Grounds. 

In  practice,  the  grounds  upon  which  a  change  of  venue 
has  usually  been  ordered  are  (1)  the  convenience  of  the 
pa-rties  and  their  witnesses,  and  (2)  the  attainment  of  a 
fair  and  impartial  trial.  Practically  the  grounds  which 
may  be  urged  are  limited  to  these  two.'^*  An  amendment 
of  the  statute  in  1905  setting  out  specifically  a  number  of 
grounds  for  a  change  of  venue,  was  repealed  in  1907.^^ 

Where  convenience  of  witness  is  relied  on  as  a  ground 
for  a  change  of  venue,  the  fact  that  all  of  the  moving 
parties  are  non-residents  of  the  state  is  material, ^^  and 
the  convenience  of  the  parties  as  well  as  of  their  witnesses 

10  Jud.  Act,  ch.  10,  §2;  Comp.  cover  condemnation  proceedings; 
Laws  1915,  §  12341.  And  see  Comp.  Michigan,  Ohio  &  I.  E.  Co.  v.  Mon- 
Laws  1915,  §  14563.  roe   Circuit   Judge,   144   Mich.   44. 

11  Moreland  v.  Lenawee  Circuit  1*  Prejudice  of  community,  see 
Judge,  144  Mich.  329.  Jacobs  v.  Hagenbeck- Wallace  Shows, 

12  Woodworth  v.  Old  Second  Nat.  198  Mich.  73,  16  N.  C.  C.  A.  535. 
Bank,   144   Mich.  338,  holding  such  15  See  Grand  Rapids  &  I.  R.  Co. 
proceedings   to   be   "civil   actions."  v.    Cheboygan    Circuit    Judge,    159 

13  Grand    Rapids   &   L   R.    Co.   v.  Mich.   210. 

Kalamazoo  Circuit  Judge,  154  Mich.  16  See   Silverstone   v.    London   As- 

493,      holding     that     words      "any       surance  Corp.,  176  Mich.  525,  529. 
cause"    are    not    broad    enough    to 


304  Change  of  Venue  §  4 

is  to  be  considered/''  and  also  the  fact  that  a  change  will 
cause  a  considerable  delay  in  the  trial  because  of  the  con- 
gested condition  of  the  calendar  in  the  county  to  which 
the  change  is  sought. ^^  Whether  a  change  of  venue  is 
proper  because  of  inability  to  obtain  a  fair  trial  on  ac- 
count of  prejudice  in  the  community  is  governed  by  no 
fixed  rule.''® 

§  5.  Who  may  move. 

A  motion  to  change  the  venue  may  be  made  either  by 
the  plaintiff  or  by  the  defendant.  It  should  be  joined  in 
by  all  of  the  plaintiffs  or  all  of  the  defendants  as  a  gen- 
eral rule,^"  but,  where  a  part  of  the  defendants  only  have 
been  served  with  process,  they  may  make  the  motion 
without  joining  those  not  served,''^  and,  when  the  default 
of  a  part  of  the  defendants  has  been  entered,  they  need 
not  be  joined  by  the  other  defendants  in  such  motion.^^ 
When  not  all  of  the  plaintiffs  or  all  of  the  defendants 
are  joined,  the  reason  why  they  are  not  joined  should  be 
shown. ^^  Corporation  litigants  have  the  same  right  to 
move  for  a  change  of  venue  as  have  individuals.*^* 

§  6.  Motion  and  notice  of  motion. 

The  motion  for  a  change  of  venue  is  a  special  motion 
required  to  be  in  writing,  signed  by  the  attorney  or  coun- 

17  Silverstone  v.  London  Assur-  21  Brodhead  v.  Stanton,  2  How. 
ance  Corp.,  176  Mich.  525,  530.  Pr.  (N.  Y.)   278;  Eldred  v.  Becker, 

18  Silverstone  v.  London  Assurance  60  Wis.  48;  Suter  v.  Page,  64  Minn. 
Corp.,   176  Mich.  525,  530.  444. 

In  New  York,  see  2  Nichols'  New  22  Chaee  v.  Benham,  12  Wend.  (N. 

York  Prac,   §1490.  Y.)     200;    Wolcott    v.    Wolcott,    32 

19  See  People  v.  Gage,  188  Mich.  Wis.  63;  Hitt  v.  Allen,  13  111.  592. 
635,  which,  however,  was  a  criminal  23  Welling  v.  Sweet,  1  How.  Pr. 
case.  (N.  Y.)   156;  McKenzie  v.  Barling, 

20Stilson  v.  Greeley,  2  Mich.  N.  101  Cal.  459. 

P.   222;    Welling  v.   Sweet,  1   How.  24  Commercial    Ins.    Co.    v.    Mehl- 

Pr.      (N.     Y.)      156;      Simmons     v.  man,   48  111.  313;   Byrum  v.   Stock- 

McDongall,  2  How.  Pr.  (N.  Y.)  77;  ton,   Combined   H.   &  A.  Works,   91 

Sailly  v.   Hutton,  6  Wend.   (N.  Y.)  Cal.  657;  McGovern  v.  Keokuk  Lum- 

508;  Eiipp  V.  Swincford,  40  Wis.  28.  ber  Co.,  61  Iowa  265. 


§  7  Change  of  Venue  305 

sel  of  the  party  in  whose  behalf  it  is  made,  and  to  set  out 
briefly,  but  distinctly,  the  grounds  upon  which  it  is 
founded.'^^  With  the  affidavits  supporting  it,  the  motion 
must  be  filed  and  notice  of  hearing  served  within  twenty 
days  after  the  cause  is  at  issue,  unless  the  moving  party 
makes  it  appear  to  the  satisfaction  of  the  court  that  the 
facts  upon  which  the  application  is  based  have  come  to 
his  knowledge  after  that  time  and  within  ten  days  pre- 
vious to  the  deferred  application,  and  that  he  has  been 
diligent  in  ascertaining  the  facts  upon  which  the  applica- 
tion is  based.^^  A  motion  for  change  of  venue  before  the 
cause  is  at  issue  is  premature.^'' 

As  in  the  case  of  other  special  motions,  notice  of  the 
argument  of  a  motion  for  a  change  of  venue,  together 
with  a  copy  thereof  and  of  the  affidavits  on  which  it  is 
based,  is  required  to  be  served  on  the  opposite  attorney 
at  least  four  days  before  the  time  noticed  for  hearing; 
but,^  for  good  cause,  the  court  may  hear  the  argument  on 
shorter  notice.^® 

§  7.  Supporting-  affidavits. 

A  motion  for  a  change  of  venue  must  be  supported  by 
a  sufficient  affidavit  showing  the  ground  or  reason  for  the 
change.  The  affidavit  need  not  be  made  by  a  party  to  the 
action  but  may  be  made  by  an  attorney  of  a  party.^* 

When  based  upon  the  convenience  of  the  parties  and 
their  witnesses,  the  number,  names  ^°  and  residences  '^ 

25  Cir.   Ct.  Eule  15,   §  1.  28  Cir.  Ct.  Eule  15,  §  2. 

26  Cir.  Ct.   Eule  38.  29  Moreland    v.    Lenawee    Circuit 
27Brcsnahan      v.      Cass      Circuit       Judge,  144  Mich.  329. 

Judge,  154  Mich.  491.     But  see  De-  30  Anon.,    6    Cow.     (N.    Y.)    398; 

troit   Portland    Cement    Co.   v.    Gen-  Minor  v.  Garrison,  4  Johns.  (N.  Y.) 

esee   Circuit   Judge,   148   Mich.   286,  481;    Worthy    v.    Gilbert,    4    Johns, 

holding  that  in  equity  the  case  need  (N.   Y.)    492;    Gilbert  v.   Chapman, 

not    be    at   issue,    as    to    all    of   the  1  How.  Pr.   (N.  Y.)   56. 

parties.     See  also,  as  to  equity  suits,  31  Lyman    v.    Gramercy    Club,    28 

State  Road  Bridge   Co.   v.   Saginaw  N.   Y.   App.   Div.   30;    Wostbrook   v. 

Circuit  Judge,  148  Mich.  396.  Merritt,   ]    How.   Pr.    (N.   Y.)    195; 
1  Abbott— 20 


306  Change  of  Venue  §  7 

of  the  persons  thus  concerned  must  be  given,  so  that  the 
court  may  see  how  such  convenience  may  be  enhanced; 
and,  as  only  material  witnesses  are  to  be  considered  for 
this  purpose,  the  affidavit  should  state  that  each  of  the 
witnesses  named  is  material  ^^  and  how  he  is  material,  and 
not  merely  cumulative,*^  as  the  party,  after  a  full  dis- 
closure of  what  he  expects  each  witness  to  testify,  is  ad- 
vised by  counsel,**  naming  him,  and  verily  believes. 
When  the  motion  is  made  for  the  purposes  of  a  fair  and 
impartial  trial,  the  affidavit  should  set  forth  specifically 
the  facts  and  circumstances,  so  that  the  court  may  from 
them  form  his  opinion  as  to  the  necessity  of  a  change  of 
venue  on  such  ground.*^  In  either  case,  the  affiant  should 
swear  that  he  has  a  good  and  substantial  defense  to  the 
plaintiff's  action  upon  the  merits,  as  he  verily  believes 
and  as  he  is  advised  by  his  counsel,  naming  him,  after  a 
full  and  fair  statement  to  him  of  the  facts  pertaining  to 
the  action.*^ 

Form  of  Affidavit  In  Support  of  Motion  for  Change  of  Venue 
(Title   of   court   and   cause.) 
County  of   ,  ss. 

C.  D.,  the  above-named  defendant,  being  duly  sworn,  deposes  and  says 
that  this  is  an  action  of  assumpsit  (or,  as  the  case,  or  what  may  be), 
and  was  commenced,  and  is  now  pending,  in  said  court;  and  that  an  issue 
of  fact  was  joined  in  this  cause  on  the day  of ,  A.  D 

Deponent   further   says    that    he    has   fully    and    fairly   stated   the   facts 

pertaining  to  this  action  to  K.  L.,  his  counsel,  who  resides  at  the   

of    ,   in   the   county   of    ,   and   has   fully   and   fairly   disclosed 

to  said  K.  L.  the  facts  which  he  expects  to  prove  by  each  and  every  of 
the   witnesses  hereinafter  named,  and  that  this  deponent  has  a  good  and 

Cook  V.  Finch,  2  How.  Pr.   (N.  Y.)  works  Co.,  16  How.  Pr.   (N.  Y.)   51. 

89;   Van  Auken  v.  Stewart,  2  How.  34  Johnson  v.  Eogers,  3  Cow.   (N. 

Pr.  (N.  Y.)   181;  Bleeeker  v.  Smith,  Y.)    14;    Satterlee  v.   Groot,  6  Cow. 

37  How.  Pr.   (N.  Y.)   28.  (N.  Y.)  33. 

32  Constantino  v.  Dunham,  9  36  Under  1905  statute,  now  re- 
Wend.  (N.  Y.)  431 ;  Harris  v.  Clark,  pealed,  see  Preston  Nat.  Bank  v. 
2  How.  Pr.  (N.  Y.)  82;  Humphrey  Wayne  Circuit  Judge,  142  Mich. 
V.  Gansevoort,  2  How.  Pr.   (N.  Y.)  272. 

123.  36Cir.    Ct.   Eule   34;    Swartout   v. 

33  Price    v.    Ft.    Edward    Water-       Hodge,  16  Johns.  (N.  Y.)  3. 


§  10  Change  of  Venue  307 

subsftantial  defense  on  the  merits  in  this  cause,  as  he  is  advised  by  his 
said  counsel  upon  such  statement  as  aforesaid  and  verily  believes. 

And   this   deponent   further  says   that  M.   N.   and   S.   E.,  of  the    

of   ,  in  the  county  of   ,  and  U.  V.  and  W.  S.,  of  the   

of in  the  county  last  aforesaid,  are  each  and  all  material  witnesses 

for  this  deponent  on  the  trial  of  this  cause,  as  he  is  advised  by  his  said 
counsel  upon  such  statement  and  disclosure  to  him  as  aforesaid  and  verily 
believes,  and  that,  without  the  testimony  of  each  and  all  of  said  witnesses, 
he,  the  said  defendant,  cannot  safely  proceed  to  the  trial  of  said  cause, 
as  he  is  also  advised  by  his  said  counsel  and  verily  believes.  (There  may 
also  be  added,  for  the  purpose  of  strengthening  the  affidavit,  a  statement 
of  the  facts  and  circumstances  involved  in  the  action,  and  showing  how 
the  witnesses,  before  named,  are  material  witnesses.) 

C.  D. 

Subscribed,  etc. 

§  8.  Affidavits  to  oppose  the  motion. 

The  motion  may  be  resisted  by  counter  affidavits  show- 
ing that  the  other  party  has  material  witnesses  residing 
in  the  county  where  the  venue  is  hiid,  or  any  other  matter 
tending  to  minimize  the  showing  of  the  moving  party." 

§  9.  Stipulations  for  change. 

A  change  of  venue  may  be  effected  by  stipulation,  it 
seems,  and  the  stipulation  may  be  signed  by  the  attorneys 
and  not  by  the  parties  themselves,  especially  in  the  case 
of  a  corporation.^*  So  it  seems  that  the  stipulation  may 
be  signed  by  a  party  rather  than  the  attoniey.^^ 

§  10.  Discretion  of  court. 

The  disposition  by  the  court  of  a  motion  for  change  of 
venue  is  a  matter  which  rests  in  the  sound  discretion  of 
the  court,  and  will  not,  therefore,  be  subject  to  review, 
unless  in  case  of  manifest  abuse,*"  especially  where  the 

37  Dunn  v.  Lewis,  19  N.  Y.  Supp.  ance  Corp.,  176  Mich.  525. 
755;    Thurber   v.   Thurber,   113   Cal.  Greeley  v.   Stilson,  27  Mich.   153; 

607.  Grand  Rapids  &  I.  R.  Co.  v.  Cheboy- 

88  Hall    V.    Dickinson,    204    Mich.  gan   Circuit   Judge,   159  Mich.   210; 

545.  People  v.   Wolverine  Mfg.   Co.,   149 

39  Goebel  v.   Stevenson,   35   Mich.  Mich.   580;    Bresnahan   v.   Cass  Cir- 
172.  cuit  Judge,  154  Mich.  491;   People 

40  Silverstone    v.    London    Assur-  v.  Gage,  188  Mich.  635. 


308  Change  of  Venue  §  10 

ground  on  which  a  change  was  sought  was  inability  to 
obtain  a  fair  trial." 

If  the  defendant  has  been  guilty  of  laches  in  making 
his  motion  and  the  plaintiff  will  lose  a  trial  by  the  delay, 
the  court  will  not  order  a  change  of  venue;"  but,  if 
laches  cannot  be  imputed  to  the  defendant,  the  fact  that 
the  plaintiff  will  lose  a  trial  by  a  change  of  venue  will 
not  operate  as  a  sufficient  reason  why  the  court  should 
not  order  it." 

The  right  to  review  the  order  by  mandamus  has  been 
held  waived  by  setting  the  case  for  trial.** 

Form  of  Order  for  Cliange  of  Venue 
(Title  of  court  and  cause.) 

On  reading  and  filing  affidavits  in  this  cause,  and  on  motion  of  K.  L., 
attorney  for  defendant,  and  after  hearing  J.  K.,  attorney  for  the  plain- 
tiff,  in   opposition  thereto,  it   is  ordered  that   the  venue  in  this  cause  be 

changed  from  the  county  of to  the  county  of   ,  and  that  the 

issue  herein  be  tried  in  the  circuit  court  for  the  county  of  afore- 
said;  and  it  is  further  ordered  that  the  clerk  of  this  court  do  forthwith 

transmit  to  the  clerk  of  the  said  circuit  court  for  the  county  of   

all  the  original  files  and  papers  in  this  cause,  together  with  certified 
copies  of  all  the  rules  and  orders  made  and  entered  in  said  cause. 

Form  of  Order  Denying  Motion  for  Cliange  of  Venue 
(Title  of  court  and  cause.) 

A  motion  having  been  made,  on  the  part  of  the  said  defendant,  to 
change  the  venue  in  this  cause,  after  hearing  counsel  for  the  respective 
parties,  it  is  ordered  that  the  said  motion  be,  and  the  same  hereby  Is, 
denied   (with    dollars,  costs). 

§  11.  Effect  of  change. 

By  statute,  the  court  to  which  the  change  of  venue  is 
ordered,  ^'has  full  jurisdiction  of  such  cause  the  same 
as  though  such  cause  had  been  originally  commenced 

41  Jacobs  V.  Hagenbeck- Wallace  surance  Corp.,  176  Mich.  525;  More- 
Shows,  198  Mich.  73,  16  N.  C.  C.  A.  land  v.  Sanford,  1  Denio  (N.  Y.) 
535.  660;  Hudson  v.  Hanson,  75  111.  198; 

For  a  late  criminal  case  reversed  Cook  v.  Garza,  9  Tex.  358. 

on  this  ground,  however,  see  People  43  Garlock    v.    Dunkle,    22    Wend, 

v.  Gage,  188  Mich.  635.  (N.  Y.)   615. 

42  See   Silverstone   v.   London  As-  44  Grand   Rapids   &   I.    R.    Co.    v. 


Churches  309 

therein.""  Another  statute  provides  that  ''in  all  suits, 
proceedings,  causes  or  actions  in  which  a  change  of  venue 
has  been  granted,  the  court  to  which  such  suit,  proceed- 
ing, cause  or  action  has  been  transferred,  shall  retain 
jurisdiction."*^  It  is  held  that  the  jurisdiction  of  the 
court  to  which  the  change  is  made  is  not  exhausted  by 
the  rendition  of  judgment  but  that  it  has  jurisdiction  to 
issue  a  mandamus,  in  a  proper  case,  to  enforce  payment 
of  the  judgment.*'^ 


See  Witnesses. 


CHARACTER 


CHARGE 


Charge  to  the  jury  is  the  instructions  (see  Instruc- 
tions), but  the  word  ''charge"  as  used  in  a  statute  has 
been  held  to  include  a  directed  verdict  (see  Exceptions, 
and  Parsille  v.  Brown,  188  Mich.  485). 

CHATTEL  MORTGAGES 

See  Attachment;  Executions;  Garnishment. 

CHATTELS 

See  Attachment;  Execution. 

CHILDREN 

See  Infants. 

CHOSES  IN  ACTION 

See  Attachment;  Executions;  Bills  and  Notes. 

CHURCHES 

See  Mandamus;  Quo  Warranto;  Exemptions. 

Cheboygan  Circuit  Judge,  159  Mich.  «  Comp.  Laws  1915,   §  14563. 

210.  47  Hall    v.    Dickinson,    204    Mich. 

46Jud.    Act,    ch.    10,    §2;    Comp.  545. 
Laws   1915,   §  12341. 


310  Circuit  Court  Commissioners  §  1 

CIRCUIT  COURT  COMMISSIONERS 

§    1.  Election  and  term  of  office. 
§    2.  Oath  of  office. 
§    3.  Powers. 

§    4.  Stay  of  proceedings. 

§    5.  Effect  of  law  partnership. 

§    6.  Limitations  on  power  by  rule  of  court. 

§    7.  "Who  to  perform  duties  when  officer  disqualified. 

§    8.  Bond. 

§    9.  Suspension. 

§  10.  How  vacancy  in  office  filled. 

§  11.  Filing  orders  and  papers. 

Cross-references:  References;  Affidavits;  Depositions;  Habeas 
Corpus;  Costs. 

§  1.  Election  and  term  of  office. 

Under  a  provision  of  the  constitution,^  the  legislature 
may  provide  by  law  for  the  election  of  one  or  more  per- 
sons in  each  organized  county,  who  may  be  vested  with 
judicial  powers  not  exceeding  those  of  a  judge  of  the  cir- 
cuit court  at  chambers.  Accordingly,  it  has  been  enacted 
that,  at  the  general  election,  one  circuit  court  commis- 
sioner shall  be  elected  in  each  of  the  organized  counties 
of  the  state,  who  shall  enter  upon  the  discharge  of  his 
official  duties  on  the  first  day  of  January  succeeding  his 
election,  hold  office  for  the  term  of  two  years  and  be 
vested  with  judicial  powers  not  exceeding  those  of  a  cir- 
cuit judge  at  chambers,  and  that  two  such  circuit  court 
commissioners  shall  be  elected  in  each  county  in  which 
any  census  taken  by  the  authority  of  the  state  or  of  the 
United  States  shows  a  population  of  twenty  thousand  or 
more.^ 

But  no  person  can  be  elected  a  circuit  court  commis- 
sioner unless  he  is  at  the  time  an  attorney  and  counselor.' 

1  Const.  Art.  VII,  sec.  21.  3  Jud.    Act,    eh.    2,    §98;    Comp. 

2Jud.    Act,    ch.    2,    §96;     Comp.       Laws  1915,   §12167. 
Laws,  1915,  §  12165. 


§  3  Circuit  Court  Commissioners  311 

§2.  Oath  of  office. 

Every  circuit  court  commissioner,  before  entering  upon 
the  duties  of  his  office,  must  take  and  subscribe  the  oath 
of  office  prescribed  by  the  constitution,  before  some  judge 
or  clerk  of  a  court  of  record,  and  cause  it  to  be  filed  in 
the  office  of  the  county  clerk.* 

§3.  Powers. 

When  he  has  qualified  according  to  law,  a  circuit  court 
commissioner  is  authorized  and  required  to  perform  all 
the  duties  and  execute  every  act,  power  and  trust  which 
a  circuit  judge  may  perform  and  execute  out  of  court, 
according  to  the  rules  and  practice  of  the  circuit  courts 
and  the  provisions  of  any  statute  in  civil  cases,  except  as 
otherwise  provided  in  the  Judicature  Act,  but  when  any 
power  is  given  in  express  terms  by  any  statute  to  circuit 
judges,  without  naming  circuit  court  commissioners  in 
the  statute,  the  latter  are  not  authorized  to  exercise  that 
power.^  Circuit  court  commissioners  can  exercise  judi- 
cial powers  in  a  very  subordinate  sense  only, — powers  of 
the  sort  that  are  usually  denominated  quasi- judicial,  such 
as  are  appropriate  for  a  judge  at  chambers  rather  than 
for  the  court.  In  short,  the  circuit  court  commissioner  is 
a  subordinate  and  assistant  to  the  circuit  court,  rather 
than  an  independent  judicial  officer.^  Being  a  subordi- 
nate officer,  he  has  no  power  to  overrule  the  action  of  a 
circuit  judge  or  court,  and  cannot  sit  in  review  of  the 
proceeding  of  the  court  and  annul  its  judgment.''^  It  has 
been  held  that  they  have  power  to  dissolve  attachments,' 

4Jud.    Act,    ch.    2,    §99;     Comp.  7  Boinay  v.   Coats,   17   Mich.  411; 

Laws  1915,  §12168.  In  re  Burger,  39  Mich.  203;  Church 

6Jud.    Act,   ch.    2,    §101;    Comp.  v.    Anti-Kalsomine    Co.,    119    Mich. 

Laws  1915,  §  12170.  437. 

Only   powers  are   those  conferred  8  Edgarton  v.  Hinchman,  7  Mich, 

by  statute.     Loder  v.  Littleficld,  39  352. 

Mich.  374.  Statute  now  so  expressly  provides. 

6  In  re  Burger,  39  Mich.  203.    See  See  Att.\cument. 
also  Boinay  v.  Coats,  17  Mich.  411. 


312  Circuit  Court  Commissioners  §  3 

to  exonerate  bail,®  to  act  in  condemnation  proceedings," 
to  issue  an  execution  for  the  collection  of  costs  in  pro- 
ceedings held  before  him,^^  and  to  try  proceedings  for  the 
recoveiy  of  the  possession  of  lands,  under  the  statute  re- 
lating to  forcible  entries  and  detainers ;  ^*  but  that  they 
cannot  determine  the  right  to  the  custody  of  children 
under  the  writ  of  habeas  corpus,^'  issue  a  writ  of  ne 
exeat,"  or  make  an  order  allowing  alimony.^^  The  power 
of  a  commissioner  to  adjudicate  upon  a  complaint  for 
the  recovery  of  the  possession  of  lands,  has  been  sustained 
mainly  upon  the  ground  that  the  same  power  was  exer- 
cised by  circuit  court  commissioners  before  the  constitu- 
tion of  1850  was  adopted,  under  a  statute  then  in  force, 
and  which  the  court  concluded  was  not  intended  to  be 
abrogated  by  it.^^ 

A  commissioner  has  no  power  to  try  the  question  of 
title  to  land  in  summary  proceedings  to  recover  posses- 
sion of  land.  And  when  such  a  question  is  raised  by  the 
proofs  he  should  dismiss  the  action  or  proceeding,^'  But 
the  mere  fact  that  there  is  an  assertion  that  title  to  land 
is  in  question  does  not  oust  the  commissioner  of  jurisdic- 
tion,^^ since  title  must  be  necessarily  involved.^*  And  it 
has  been  held  incompetent  for  the  legislature  to  confer 
upon  these  officers  authority  to  adjudicate  upon  the  valid- 
ity of  titles  asserted  in  lands  sold  for  non-payment  of 
taxes.^" 

9  DeMyer  v.  McGonegal,  32  Mich.  17  Lieblien   v.  Hansen,   178   Mich. 
120.                                                                   11;  Jenkinson  v.  Winans,  109  Mich. 

10  Smith  V.  Milton  School  District  524;    Butler   v.   Bertrand,   97   Mich. 
No.  2,  40  Mich.  143.  59.     When  title  to  land  brought  in 

11  Watson    V.    Randall,    44    Mich.  question  in  summary  proceedings  to 
514.  oust    tenant,    see   Meeske    v.    Miller, 

12Streeter  v.  Baton,  7  Mich.  341.  138  Mich.  87. 

13Rowe  V.  Rowe,  28  Mich.  353.  18  Barrett  v.   Cox,   112  Mich.  220. 

14  Bailey  V.  Cadwell,  51  Mich.  217.  19  Butler    v.    Bertrand,    97    Mich. 

15  Thorp  V.  Thorp,  2  Mich.  N.  P.  59. 

209.  20Waldby    v.    Callendar,    8    Mich. 

;6Streeter  v.  Baton,  7  Mich.  341.      430;  Case  v.  Dean,  16  Mich.  12. 


§  4  Circuit  Court  Commissioners  313 

§  4.  Stay  of  proceedings. 

By  statute  they  are  forbidden  to  stay  proceedings  be- 
fore judgment  in  any  cause  in  which  a  verdict  has  been 
rendered  or  to  stay  proceedings  on  any  capias  ad  respon- 
dendum.^^ Although  they  may  stay  proceedings  on  exe- 
cutions, such  stay  does  not  prevent  a  levy  on  property  by 
virtue  of  the  execution,  but  only  suspends  a  sale  thereon 
until  the  decision  of  the  proper  court  upon  the  matter.^^ 

And  commissioners  cannot  stay  proceedings  on  any 
execution  against  the  body  of  a  defendant,  unless  the  de- 
fendant has  executed  to  the  plaintiff  and  delivered  to  the 
commissioner  a  bond  for  the  use  of  the  plaintiff  in  a 
penalty  double  the  amount  required  to  be  collected  by  the 
execution.  Such  a  bond  must  have  two  sufficient  sure- 
ties, who  swear  that  they  are  each  worth  the  amount  of 
the  penalty,  over  and  above  all  debts  and  property  ex- 
empt from  execution,  and  must  be  conditioned  that  the 
defendant  will  be  found  within  the  county  to  which  the 
execution  is  directed,  so  as  to  be  arrested  upon  any  exe- 
cution that  may  be  issued  against  his  body  upon  the  same 
judgment  within  six  months  from  the  date  of  the  bond.^* 
The  commissioner  must  file  the  bond,  within  twenty  days 
after  he  has  taken  it,  in  the  office  of  the  clerk  of  the  court 
from  which  the  execution  was  issued;  and,  whenever  the 
condition  of  the  bond  is  broken,  the  clerk  must  deliver  it 
to  the  person  in  whose  favor  the  execution  was  issued.  In 
every  order  to  stay  proceedings  on  an  execution  against 
the  body,  the  fact  that  such  a  bond  has  been  given  as  re- 
quired by  law  must  be  stated  or  the  order  will  be  void.^* 

When  the  supreme  court  has  made  an  order  in  refer- 
ence to  any  matter,  it  cannot  be  suspended  or  in  any  man- 

SlJud.   Act,   ch.   2,    §102;    Comp.  23  Jud.   Act,   ch.   23,    §34;    Comp. 

Laws   1915,   §  12171.  Laws  1915,  §  12849. 

Power    to    grant    injunctions,    see  24  Jud.    Act,    ch.    23,    §§35,    36; 

Cir.  Ct.  Kule  54.  Comp.   Laws   1915,   §§12850,  12851. 

22  Jud.   Act,  ch.   23,    §33;    Comp. 
Laws  1915,  §  12848. 


314  Circuit  Court  Commissioners  §  4 

ner  affected  by  an  order  granted  by  a  circuit  court  com- 
missioner.^* And  when  an  application  for  an  order  has 
been  made  to  any  justice  of  the  supreme  court,  circuit 
judge  or  circuit  court  commissioner,  and  such  order  has 
been  refused  in  whole  or  in  part,  or  granted  conditionally 
or  on  terms,  no  subsequent  application  in  reference  to  the 
same  matter  and  in  the  same  stage  of  the  proceedings 
can  lawfully  be  made  to  any  other  circuit  court  commis- 
sioner. If,  upon  a  subsequent  application,  any  order 
should  be  made  by  a  circuit  judge  or  circuit  court  com- 
missioner, it  must  be  revoked  by  such  judge  or  commis- 
sioner or  by  any  justice  of  the  supreme  court,  upon  due 
proof  of  the  facts.  And  every  person  making  such  a 
subsequent  application,  with  knowledge  of  the  previous 
application  and  refusal,  is  liable  to  be  punished  by  fine 
and  imprisonment  by  the  court  in  which  the  matter  is 
pending.^^ 

§  5.  Effect  of  law  partnership. 

No  circuit  court  commissioner  having  a  law  partner,  in 
whose  name  the  business  of  the  co-partnership  is  carried 
on,  is  competent  to  perform  any  official  act,  as  commis- 
sioner, in  any  suit  or  proceeding  in  which  his  partner  is 
in  any  way  interested." 

§  6.  Limitations  on  powers  by  ride  of  court. 

The  supreme  court  has  power  by  general  rules  to  pre- 
scribe other  cases  in  which  circuit  court  commissioners 
shall  not  be  authorized  to  act;  also,  to  prescribe  the  terms 
and  conditions  upon  which  orders  may  be  granted  in  any 
class  of  cases,  and  may,  by  order  in  any  particular  case, 
forbid  the  interference  of  any  circuit  court  commis- 
sioner.^*   Accordingly  the  supreme  court  has  by  rule  re- 

25Jua.   Act,   ch.   2,    §103;    Comp.  T.aws     1915,      §12175;      Brown      v. 

Laws  1915,  §12172.  Byrne,  Walk.  Ch.  45:5;  Heyn  v.  Far- 

26Jua.    Act,    ch.    2,    §§104,    105;  rar,  ;J6  Mich.  258. 

Comp.  Laws  1915,  §§12173,  12174.  28  Jud.    Act,   ch.   2,    §107;    Comp. 

27Jud.   Act,   ch.   2,    §106;    Comp.  Laws  1915,  §12176. 


§  7  Circuit  Court  Commissioners  315 

stricted  the  powers  of  the  circuit  court  commissioners,  so 
far  as  pertains  to  suits  at  law,  by  forbidding  them  to 
vacate  any  order  of  the  circuit  court  or  any  order  made 
by  the  circuit  judge.^® 

§  7.  Who  to  perform  duties  when  officer  disqualified. 

In  all  cases  where  any  duties  are  to  be  performed  by 
a  circuit  court  commissioner,  and  there  is  no  commission- 
er who  is  not  legally  disqualified  from  performing  them, 
they  may  be  performed  by  any  commissioner  of  an  ad- 
joining county  who  is  not  disqualified.  If  it  be  some 
matter  pending  in  a  circuit  court,  the  judge  of  the  court 
may  appoint  a  commissioner  specially  for  the  purpose,  or 
the  parties  interested  may  stipulate  in  writing  that  any 
notary  public,  who  is  an  attorney  of  the  supreme  court, 
may  act.^°  But  before  the  commissioner  of  an  adjoining 
county  can  enter  upon  the  performance  of  such  duties, 
propf  must  be  made  and  presented  to  him,  by  affidavit, 
that  there  is  no  circuit  court  commissioner  of  the  proper 
county  competent  and  qualified  to  discharge  the  duties, 
and  stating  the  ground  of  disqualification.  This  proof 
must  in  all  cases  accompany  the  act  and  form  part  of 
the  proceedings  of  the  commissioner  discharging  such 
duties.^^ 

Whenever  any  process  has  been  issued  or  any  matter 
referred  to  a  circuit  court  commissioner,  and,  on  the  day 
set  for  the  return  or  hearing,  the  commissioner  is  absent 
or  disqualified  from  acting  therein,  any  other  circuit 
court  commissioner,  or  other  officer  having  authority  to 
perform  the  like  duty  in  the  same  county,  may  assume 
jurisdiction  and  proceed  with  like  effect,  in  all  respects, 
as  if  originally  the  process  had  been  issued  or  the  matter 

29Cir.  Ct.  Eule  54.  SlJud.    Act,   eh.   2,    §112;    Comp. 

30Jud.    Act,   ch.   2,    §111;    Comp.       Laws  1915,  §12181. 
Laws  1915,  §  12180.     See  also  Pub. 
Acts  1919,  No.  172. 


316  Circuit  Couet  Commissioners  §  7 

referred  to  him;  or  he  may,  in  his  discretion,  adjourn  the 
same  from  time  to  time,  and,  on  the  adjoumed  day,  pro- 
ceed, or,  on  the  adjourned  day,  the  commissioner  who  is- 
sued the  process  or  to  whom  the  matter  was  referred,  if 
not  then  disqualified,  may  assume  jurisdiction  and  pro- 
ceed in  all  respects  as  if  the  adjournment  had  been  made 
by  himself.^^ 

§8.  Bond. 

Each  circuit  court  commissioner,  before  entering  on  the 
performance  of  his  duties,  is  required  to  execute  a  bond 
to  the  people  of  the  state,  with  sufficient  surety  or  sure- 
ties, to  be  approved  by  the  circuit  judge  or  clerk  of 
the  county,  conditioned  for  the  faithful  performance 
of  the  duties  required  of  him  by  law.  The  bond  must  be 
in  the  penal  sum  of  not  less  than  three  thousand  nor  more 
than  five  thousand  dollars,  in  the  discretion  of  the  circuit 
judge  or  county  clerk  by  whom  the  bond  may  be  approved. 
When  approved,  it  should  be  filed  in  the  office  of  the  coun- 
ty clerk.  Any  circuit  court  commissioner  may  be  re- 
quired by  the  circuit  judge  of  his  county  at  any  time  to 
renew  his  bond.^' 

§  9.  Suspension. 

In  case  of  misconduct  in  office,  a  circuit  court  commis- 
sioner may  be  suspended  by  the  circuit  judge  of  his  coun- 
ty from  the  exercise  of  the  powers  and  duties  of  his  office, 
after  due  notice  and  a  full  opportunity  of  making  his 
defense  have  been  given  him.  It  is  the  duty  of  the  judge 
immediately  to  report  such  suspension,  with  the  reasons 
therefor,  to  the  governor,  who  may  remove  him  from 
office 


34 


82Jud.   Act,  ch.   2,    §113;    Ck>mp.  34  Jud.   Act,  ch.  2,   §116;    Comp. 

Laws  1915,  §  12182.  Laws  1915,  §  12185. 

38  Jud.   Act,  ch.   2,    §100;    Comp. 
Laws  1915,  §  12169. 


§  1  Circuit  Courts  317 

§  10.  How  vacancy  in  office  filled. 

Whenever  a  vacancy  occurs  for  any  cause  in  the  office 
of  circuit  court  commissioner,  the  governor  may  fill  it  by 
the  appointment  of  a  person  eligible  to  the  office;  and 
the  person  so  appointed,  upon  taking  the  oath  and  ex- 
ecuting and  filing  the  bond  required  of  circuit  court  com- 
missioners, is  authorized  to  perform  all  the  duties  of,  is 
subject  to  all  the  liabilities  of,  and  holds,  the  office  until 
his  successor  is  elected  and  qualified.^^ 

§  11.  Filing  orders  and  papers. 

Every  commissioner  must  file  with  the  clerk  of  the 
court  all  orders  made  by  him,  together  with  the  paj^ers 
on  which  they  are  based,  immediately  upon  the  making 
of  such  order.^^ 

CIRCUIT  COURT  RULES 

See  Rules  of  Court. 

CIRCUIT  COURTS 

§  1.  Judicial  circuits. 

§  2.  Election   of   judges. 

§  3.  Term  of  office  of  judges. 

§  4.  Compensation  of  judges. 

§  5.  Number  of  terms  of  court. 

§  6.  When  terms  of  court  to  be  held. 

§  7,  Place  for  holding  court. 

§  8.  Jurisdiction. 

§  9.  Courts  as  courts  of  chancery. 

Cross-Eeferenees:    Courts;   Judges;   Circuit  Court  Commissioners. 

§  1.  Judicial  circuits. 

The  state  is  di\'ided  into  judicial  circuits,  in  each  of 
whicli  the  electors  tliereof  elect  one  circuit  judge,  and 
such  additional  nunil)er  as  the  legislature  may  provide 

36Jud.   Act,   ch.   2,    §117;    Conip.  36  Cir.   Ct.  Rule  51,   §2. 

Laws  1915,  §12186. 


318  Circuit  Courts  §  1 

for.^  The  legislature  may  arrange  the  various  circuits 
into  judicial  districts  and  provide  for  the  manner  of  hold- 
ing court  therein,  but  no  creation,  alteration  or  discon- 
tinuance of  circuits  or  districts  can  have  the  effect  of 
removing  a  judge  from  office.^ 

§  2.  Election  of  judges. 

Judges  of  the  circuit  courts  are  elected  on  the  first 
Monday  in  April  every  sixth  year.^  A  statute  provides 
that  no  person  shall  be  eligible  to  the  office  of  circuit 
judge  in  this  state,  unless  he  be  a  regularly  licensed  at- 
torney and  counselor,  duly  admitted  to  practice  in  all  the 
courts  in  this  state.* 

§  3.  Term  of  office  of  judges. 

The  term  of  office  of  circuit  judges  is  six  years,  and 
until  their  successors  are  elected  and  qualified,®  and  be- 
gins on  the  first  day  of  January  next  succeeding  their 
election. 

§  4.  Compensation  of  judges. 

The  judges  of  the  circuit  courts  each  receive  an  annual 
salary  of  five  thousand  dollars,^  payable  monthly.'^  This 
salary  is  in  full  compensation  for  all  services  performed 
by  such  judges,  unless  the  board  of  supervisors  votes  to 
pay  the  circuit  judge  regularly  holding  court  in  its  county 
an  amount  in  addition  thereto.'  Any  such  vote  must  be 
at  a  regular  session  of  the  board.*    In  anv  county  where 

\ 

1  Const.  Art.  VII,  sees.  8,  9.  Pub.  Acts  1919,  No.  143. 

2  Const.  Art.  VII,  sec.  8.  7  Const.  Art.  VII,  see.  12. 

8  Const.  Art.  VII,  sec.  9.  8Jud.    Act,    ch.    2,    S58;     Comp. 

4  Jud.    Act,    ch.    2,    §  40 ;     Comp.  Laws   1915,  §  12141,  as  amended  by 
Laws  1915,  §  12123.  Pub.  Acts  1919,  No.  143;  Const.  Art. 

5  How.  Stat.  (2nd  ed.)  473;  Comp.  VII,  sec.  12. 

Laws  1915,  §  3856;  Const.  Art.  VIII,  9  Jud.    Act,    ch.    2,    §58;     Comp. 

sec.  9.  Laws  1915,  §  12141,  as  amended  by 

6Jud.    Act,    eh.    2,    §58;     Comp.  Pub.   Acts   1919,   No.    143. 
Laws  1915,  §  12141,  as  amended  by 


§  7  Circuit  Courts  319 

such  additional  salary  is  granted,  it  must  be  paid  at  the 
same  rate  to  all  circuit  judges  regularly  holding  court 
therein.^** 

§  5.  Number  of  terms  of  court. 

In  every  county  organized  for  judicial  purposes,  at 
least  four  terms  of  court  must  be  held  in  each  year.^^ 

§  6.  When  terms  of  court  to  be  held. 

The  times  fixed  for  holding  the  terms  of  court  in  the 
several  counties  continue  to  be  the  times  for  holding 
such  terms  until  changed  by  the  circuit  judge  by  an  or- 
der entered  upon  the  journal  of  the  court.  Such  change 
may  be  made  from  time  to  time  as  the  judge  may  think 
proper,  but  no  change  can  be  made  effective  until  the  ex- 
piration of  three  months  from  the  date  of  the  entry  of 
the  order  making  the  change. ^^ 

§  7.  Place  for  holding*  court. 

The  place  of  holding  the  terms  of  the  circuit  court  in 
each  county  is  the  court  house  therein. ^^  But  whenever 
it  is  deemed  unsafe  or  inexpedient,  by  reason  of  war, 
pestilence  or  other  public  calamity,  to  hold  court  at  the 
time  and  place  appointed  therefor,  or  wherever  there  is 
no  court  house  in  the  county  or  the  court  house  is  un- 
safe or  unfit  for  holding  court  therein,  the  judge  may  ap- 
point any  other  place  in  the  county  as  a  temporary  place 
for  holding  court. ^*    When  such  an  appointment  is  made, 

10  Const.  Art.  VII,  sec.  12.  of    a  particular   county   at   another 

11  Jud.  Act,  ch.  7,  §  1 ;  Comp.  place  than  the  county  seat  does  not 
Laws  1915,  §  12303 ;  Const.  Art.  VI,  violate  the  constitutional  provision 
sec.   8.  forbidding  the  removal  of  a  county 

12  Jud.  Act,  ch.  7,  §2;  Comp.  seat  without  a  popular  vote,  since 
Laws  1915,   §  12304.  the  seat  of  justice  is  not  necessarily 

13  Attorney  General  v.  Supervisors,  at  the  county  scat.  Whallon  v.  Ing- 
33  Mich.  294.  liam.  Circuit  Judge,  51  Mieh.  503. 

A  statute  authorizing  the  holding  14  Jud.    Act,    ch.    7,    §  3 ;     Comp. 

of  certain  terms  of  tlie  circuit  court      Laws  1915,   §  12305;   Attorney  Gen- 


320  Circuit  Courts  §  7 

it  must  be  by  an  order  in  writing,  signed  by  the  judge 
or  judges  making  it,  and  the  order  must  be  publislied  by 
advertisement  or  in  such  other  manner  as  is  required  in 
the  order."  The  place  so  appointed  will  be  deemed  the 
court  house  of  the  county  for  the  time  being  for  all  pur- 
poses connected  with  the  court.^^ 

§  8.  Jurisdiction. 

In  accordance  with  the  terms  of  the  constitution,  the 
circuit  courts  have  original  jurisdiction  in  all  matters, 
civil  and  criminal,  not  excepted  in  the  constitution  and 
not  prohibited  by  law,  and  appellate  jurisdiction  from 
all  inferior  courts  and  tribunals  and  a  supervisory  con- 
trol of  them.  They  are  also  vested  with  power  to  issue 
writs  of  habeas  corpus,  mandamus,  injunction,  quo  war- 
ranto and  certiorari  and  to  hear  and  determine  the  same, 
and  to  issue  such  other  writs  as  may  be  necessary  to  caiTy 
into  effect  their  orders,  judgments  and  decrees  and  give 
them  general  control  over  inferior  courts  and  tribunals 
within  their  respective  jurisdictions,  and  in  all  such  other 
cases  and  matters  as  the  supreme  court  shall  by  rule  pre- 
scribe ;  "  and,  under  the  statute,"  the  circuit  courts  with- 
in and  for  their  respective  counties  have  and  exercise 
original  and  exclusive  jurisdiction  as  follows: 

1.  Of  all  civil  actions  and  remedies  of  whatever  name 
or  description,  not  excepted  in  the  constitution  and  not 
prohibited  by  law,  except  in  cases  where  exclusive  or 
concurrent  jurisdiction  is  given  by  law  to  some  other 
court  or  tribunal; 

2.  To  issue  writs  of  habeas  corpus,  mandamus,  injunc- 
tion, quo  waiTanto,  certiorari  and  ne  exeat,  and  to  hear 

eral  v.  Supervisors  of  Lake  County,  17  Const.  Art.  VII,  sec.  10. 

33  Mich.  289.  18  Jud.    Act,    ch.    6,    §  1 ;     Comp. 

16Jud.    Act,    ch.    7,     S3;     Comp.       Laws  1915,  §  12299. 
Laws  1915,   §  12305. 

16  Jud.    Act,    ch.     7,    §  3 ;     Comp. 
Laws  1915,  §  12305. 


§  8  Circuit  Courts  321 

and  determine  the  same,  except  that  no  circuit  court  has 
jurisdiction  to  issue  writs  of  mandamus  or  quo  warranto 
against  State  officers; 

3.  To  issue  such  other  writs  as  may  be  necessary  to 
carry  into  etTect  their  orders,  judgments  and  decrees  and 
give  them  control  over  all  inferior  courts  and  tribunals 
within  their  respective  jurisdiction; 

4.  In  all  such  other  cases  and  matters  as  the  supreme 
court  shall  by  rule  prescribe; 

5.  Said  courts  shall  have  such  appellate  jurisdiction 
and  powers  as  may  be  provided  by  law; 

6.  Said  courts  shall  also  have  and  exercise  all  the 
powers  usually  possessed  and  exercised  by  courts  of 
record  at  the  common  law,  except  as  now  or  hereafter 
modified  by  the  laws  of  this  State  or  by  rule  of  the 
supreme  court,  for  the  full  exercise  of  their  jurisdiction 
and  have  the  power  to  make  all  orders  in  any  cause  pend- 
ing therein,  which  may  be  necessary  or  proper  for  carry- 
ing into  effect  their  jurisdiction  and  to  give  full  effect 
to  any  judgment  of  such  courts,  and  may  enforce  any 
lawful  order  so  made  by  attacliment  and  proceedings  for 
contempt ; 

7.  Parties  to  any  civil,  action  pending  in  any  circuit 
court,  and  parties  to  any  question  of  difference  which 
might  be  the  subject  of  any  civil  action,  without  bring- 
ing suit,  may  agree  upon  a  case  containing  the  facts  of 
the  matter  in  controversy  and  submit  it  to  the  court, 
and  the  court  will  thereupon  hear  and  determine  the 
cause  and  render  judgment  thereon  as  in  other  cases. 
But  if  such  case  be  agreed  upon  without  action,  it  must 
appear  by  affidavit  that  the  controversy  is  real  and  the 
proceedings  in  good  faith  to  determine  the  rights  of  the 
parties. 

8.  Said  circuit  courts  may  from  time  to  time  make 
rules  for  regulating  the  practice  of  the  court  in  matters 
not  covered  by  rule  of  the  supreme  court  or  by  statute. 

1  Abbott— 21 


322  Circuit  Courts  §  8 

They  are  the  highest  courts  of  general  original  juris- 
diction in  the  state."  The  constitution  ranks  all  other 
courts,  except  the  supreme  court,  as  inferior  courts  in 
legal  grade  to  the  circuit  courts,  and  they  cannot  be 
allowed  in  any  case  to  review  the  action  of  the  circuit 
courts.^"  Such  jurisdiction  as  the  constitution  gives 
without  exception  to  the  circuit  courts  cannot  be  dimin- 
ished or  divested  by  the  legislature.^^  The  original  juris- 
diction, however,  is  subject  to  the  exception  of  such  cases 
as  are  or  may  be  prohibited  by  law,''''  the  constitution 
itself  giving  justices  of  the  peace  in  civil  cases  exclusive 
jurisdiction  to  the  amount  of  one  hundred  dollars.^'  Or- 
iginal jurisdiction  in  certain  cases  has  also  been  con- 
ferred upon  the  probate  courts  and  municipal  courts.^* 
But  the  appellate  jurisdiction  from  all  inferior  courts 
and  tribunals  and  supervisory  control  of  them  is  speci- 
fically vested  by  the  constitution  in  the  circuit  courts  and 
cannot  be  taken  away  from  them  by  any  legislative  act 
which  attempts  to  transfer  even  a  part  of  it  to  another 
tribunal.^* 

The  circuit  courts,  in  the  exercise  of  their  common 

19  People  V.  Kent  Circuit  Judge,  Jurisdiction  depends  on  amount 
37  Mich.  372;  Cofrode  v.  Gartner,  claimed  in  the  declaration,  at  least 
79  Mich.  332.  in  actions  on  contracts.    Zimmerman 

20  Lander  v.  Reilly,  79  Mich.  602.  v.  Miller,  173  N.  W.  364  and  eases 

21  Attorney  General  v.  Lacy,  180  cited;  Merrill  v.  Butler,  18  Mich. 
Mich.    329,    342;    Nichols    v.    Judge  294. 

of   Superior   Court,   130   Mich.    187;  Legislature    may    confer    jurisdic- 

Atkins    V.   Borstler,   46    Mich.    552;  tion  on  circuit  court  in  cases  involv- 

and  see  Eddy  v.  Lee  Tp.,  73  Mich.  ing    any    amount.      Detroit    Lumber 

123;   People  v.  Kent  Circuit  Judge,  Co.  v.  The  Petrel,  153  Mich.  528. 

37   Mich.  372;   People  v.  Kent  Cir-  24  But   a   statute   conferring  orig- 

cuit   Judge,    37    Mich.   474;    People  inal  jurisdiction  on  the  circuit  court 

V.   Wayne   Circuit  Judge,  18   Mich.  in    the    matter    of    probating    wills 

483.  where  a  contest  arises  is  not  uncon- 

22  Const.  Art.  VII,  sec.  10 ;  People  stitutional  as  interfering  with  the 
T.  Hurst,  41  Mich.  328.  jurisdiction  of  the  probate  court.   In 

28  Const.  Art.  VII,  sec  16;  Fix  re  Kockett 's  Estate,  191  Mich.  499. 
V.  Sissung,  83  Mich.  561;   Eldred  v.  26  People   v.   Kent   Circuit   Judge, 

Woolaver,  46  Mich.  241.  37  Mich.  474. 


§  9  Circuit  Courts  323 

law  powers,  in  both  civil  and  criminal  cases,  are  courts 
of  superior,  and  not  of  inferior  jurisdiction,  and  as  such 
their  jurisdiction  is  presumed  in  all  cases  where  the 
record  does  not  disclose  a  want  of  it,^^  until  the  contrary- 
is  shown.  But  if  they  act  without  authority  their  judg- 
ments are  void,  and  their  jurisdiction  may  be  inquired 
into  in  every  court  where  their  proceedings  are  relied 
upon  by  a  party  claiming  the  benefit  of  them,^'  and  where 
the  want  of  jurisdiction  appears  on  the  record  of  the 
court,  such  record  is  a  nullity,  and  no  rights  can  be 
acquired  under  it.^^  And  where  the  court  is  vested  with 
extraordinary  powers,  under  a  statute  specially  prescrib- 
ing its  course  of  procedure,  that  course  ought  to  be  ex- 
actly pursued,  and  the  facts  which  give  jurisdiction  ought 
to  appear,  in  order  to  show  that  its  proceedings  are 
coram  judice.^^  The  circuit  courts  have  no  original  juris- 
diction over  claims  against  estates.^** 

§  9.  Courts  as  courts  of  chancery. 

The  several  circuit  courts  of  the  state  are  also  courts 
of  chancery  within  and  for  their  respective  counties,  the 
powers  of  which  are  exercised  by  the  circuit  judges  there- 
of; and  the  name  and  style    of    such    courts  sitting  in 

chancery  is  '  *  The  Circuit  Court  for  the  County  of , 

in  Chancery."  But  it  is  not  within  the  scope  of  this 
treatise  to  enter  into  any  consideration  of  chancery  courts 
or  of  chancery  practice. 

26  Greenvault  v.  Farmers '  &  Me-  See  also  Palmer  v.  Coakley,  2  Doug. 
chanics'    Bank,    2    Doug.    498,    508.       433,  476. 

See   also   Arnold   v.   Nye,   23    Mich.  28  Wilson  v.   Arnold,   5  Mich.  98, 

286.     See  also  Courts.  105. 

Circuit   courts   are   courts  of   lim-  29  Greenvault   v.   Farmers'   &   Me- 
lted   but    not    inferior    jurisdiction.  chanics'    Bank,    2    Doug.    498,    507. 
Ward     V.     Cozzens,     3     Mich.     252,  See  also  Clark  v.  Eaymond,  27  Mich, 
quoted    in    Thomas    v.    Rosecrantz,  456. 
193  Mich.  357.  80  Patrick    v.    Howard,    47    Mich. 

27  Greenvault  v.   Farmers '  &  Me-  40. 
chanics'    Bank,    2    Doug.    498,    507. 


324  Citation 

CITATION 

A  citation  is  like  a  summons  and  is  generally  issued 
either  to  notify  a  party  interested  in  a  cause  of  action 
of  proceedings  therein  or  to  give  interlocutory  notices 
during  the  pendency  of  an  action  or  proceeding.  The 
term  is  used  in  the  Judicature  Act  in  connection  with 
the  dissolution  of  attachments  (see  Attachment),  gar- 
nishment (see  Garnishment)  and  some  other  particular 
proceedings.  Citations  in  briefs  (see  Briefs)  are  regu- 
lated by  rule  of  court. 

CITIES  AND  VILLAGES 

See  Costs;   Executions;   Municipal  Corporations. 

CLERKS  OF  COURT 

§  1.  In  general. 

§  2.  Clerk  of  supreme  court. 

§3.  Duties. 

§  4.  Fees. 

§  5.  Deputy  clerk. 

§  6.  Clerk  of  circuit  courts. 

§  7.  Deputies. 

§  8.  Where  clerk  to  hold  his  office. 

§  9.  Duties. 

Cross-references:  Papers  and  Notices;  Costs;  Affidavits;  Certio- 
rari; Amendments. 

§  1.  In  general. 

Clerks  of  courts  are  ministerial  officers  and  cannot, 
at  least  unless  authority  is  expressly  delegated  by  the 
constitution  or  statutes,  exercise  any  judicial  functions.^ 
Furthermore,  the  court,  in  the  absence  of  express  author- 
ity, cannot  delegate  judicial  functions  to  its  clerk.^  He 
is  responsible  for  all  fees  actually  received  by  him.' 

1  People  V.  Colleton,  59  Mich.  573.  3  People    v.    Treadway,    17    Mich. 

2  Strickland  v.  Cox,  102  N.  C.  411.      480. 


§  3  Clerks  of  Court  325 

§  2.  Clerk  of  supreme  court. 

He  is  appointed  by  the  court,  and  he  must  be  an  at- 
torney duly  admitted  to  practice  before  the  bar  of  the 
supreme  court.*  Before  entering  upon  the  duties  of  his 
office  and  within  ten  days  after  his  appointment  to  such 
office,  he  is  required  to  give  a  bond  to  the  people  of  the 
state  of  Michigan  in  the  penal  sum  of  five  thousand  dol- 
lars, to  be  approved  by  the  chief  justice  of  the  supreme 
court,  for  the  faithful  discharge  of  the  duties  of  his  of- 
fice.* This  bond  is  for  the  period  of  five  years  and  must 
be  renewed  at  all  events  at  the  expiration  of  that  time,^ 
The  supreme  court  may  require  its  clerk  to  furnish  a 
new  or  additional  bond  at  any  time.'  The  bonds  of  the 
clerk  are  deposited  with  the  secretary  of  state. ^  The 
clerk  must  also,  before  entering  upon  the  duties  of  his 
office,  take  the  constitutional  oath  of  office.^  He  holds 
his  office  during  the  pleasure  of  the  court. ^^ 

§3.  Duties. 

The  clerk  has  the  care  and  custody  of  all  the  records, 
seals,  books  and  papers  appertaining  to  his  office  and 
filed  or  deposited  tlierein,  and  he  has  such  other  duties  to 
perforai  relating  to  his  office  as  are  required  of  him  by 
law  or  by  the  rules  and  practice  of  the  court.^^  He  must 
reside  and  keep  his  office  at  the  city  of  Lansing,  and  he 
cannot  practice,  either  as  attorney  or  counselor,  in  any 

4Jud.    Act,    ch.    1,  §31;    Comp.  eh.     1,     §36;     Comp.     Laws     1915. 

Laws  1915,  §  12036.  §  12041. 

6  How.    Stat.     (2nd  ed.)     12534;  8  Jud.    Act,    eh.    1,    §31;    Comp. 

Comp.  Laws  1897,   §223;  Jud.  Act,  Laws   1915,   §12036. 

ch.     1,     §36;     Comp.  Laws     1915,  9  Const.    Art.    XVI,    sec.    2;    Jud. 

§12041.  Act,  ch.  1,  §31;   Comp.  Laws  1915. 

6  How.    Stat.     (2nd  ed.)     12534;  §12036. 

Comp.  Laws  1897,  §  223 ;  Jud.  Act,  10  Jud.    Act,    ch.    1,    §  31 ;    Comp. 

ch.     1,     §36;     Comp.     Laws     1915,  Laws    1915,     §12036;     Const.    Art. 

§  12041.  VII,  sec.  6. 

7  How.    Stat.     (2nd    ed.)     12534;  H  Jud.    Act,    ch.    1,    §31;    Comp. 
Comp.  Laws  1897,  §223;   Jud.  Act,  Laws  1915,  §12036, 


326  Clerks  of  Court  |  3 

court,  while  he  continues  to  be  such  clerk. ^^  He  is  re- 
quired to  indorse  on  every  paper  the  day  on  which  it  is 
filed,  and  must  not  permit  any  original  record  or  paper 
to  be  taken  from  the  court  room  or  from  the  office  with- 
out an  order  from  the  court  or  the  permission  of  one  of 
the  justices  thereof;  but  parties  interested  in  any  of  them 
may  inspect  the  same  and  take  copies  thereof.^' 

§4.  Fees. 

The  clerk  is  entitled  to  six  dollars  upon  entering  any 
case  in  the  supreme  court,  and  this  is  in  full  for  all  fees 
in  the  case,  provided  that  an  additional  sum  of  two  dol- 
lars must  be  paid  to  the  clerk  upon  the  entry  of  any  mo- 
tion upon  the  motion  docket,  except  in  cases  of  manda- 
mus, where  the  motion  fee  is  four  dollars.^*  He  is  also 
allowed  the  sum  of  fifteen  cents  per  folio  for  certified 
copies  of  any  entries  or  papers  in  any  suit  or  proceeding, 
when  required  for  any  other  purpose  than  for  one  con- 
nected with  the  progress  or  disposition  of  such  suit  or 
proceeding.^^  His  fee  for  all  proceedings  relative  to  the 
admission  of  any  person  to  the  bar,  including  the  proper 
certificate,  is  the  sum  of  two  dollars. ^^ 

It  is  the  duty  of  the  clerk  to  collect  all  the  fees  of  his 
office,  whether  provided  for  by  statute  or  by  the  rules  of 
the  court,  and  to  pay  them  monthly  into  the  state  treas- 
ury." 

§  5.  Deputy  clerk. 

The  clerk  may  appoint  a  deputy  with  the  approval  of 
the  court,  who  must  be  an  attorney  duly  admitted  to 
practice  before  the  bar  of  the  court." 

Whenever  the  clerk  is  absent  from  his  office  or  from 

12  Sup.   Ct.   Rule   1.  17Ju(1.    Act,    ch.    1,    §31;    Comp. 

13  Sup.   Ct.   Rule   1,  Laws     1915,     §12036;     Const.    Art. 

14  Sup.   Ct.   Rule  2.  VII,   sec.   6. 

IB  Sup.   Ct.   Rule   2.  18  Jud.    Act,    ch.    1,    §32;    Comp. 

16  Sup.  Ct.  Rule  2.  Laws  1915,  §  12037. 


§  6  Clerks  of  Court  327 

the  place  where  any  official  duty  is  required  to  be  per- 
formed by  him,  or  is  incapable  of  performing  the  duties 
of  his  office,  and  also  whenever  the  office  of  clerk  is  va- 
cant, the  deputy  clerk  may  perform  the  duties  of  the 
office  during  such  absence,  inability  or  vacancy,^® 

§  6.  Clerk  of  circuit  courts. 

The  clerk  of  each  county  organized  for  judicial  pur- 
pose is  clerk  of  the  circuit  court  for  such  county.^''  He 
is  required  to  attend  every  term  of  the  court  of  which 
he  is  clerk,  and  has  the  care  and  custody  of  all  the  rec- 
ords, seals,  books  and  papers  pertaining  to  his  office  and 
filed  or  deposited  therein.^^  He  must  keep  a  journal  of 
the  proceedings  of  the  court,  under  the  direction  of  the 
circuit  judge  presiding  therein,  and  all  entries  so  made 
should  be  read  over  in  open  court  by  the  clerk  from  day 
to  day  and  corrected,  when  necessary,  and  signed  by  the 
circuit  judge.^^  The  clerk  provides,  at  the  expense  of 
the  county,^^  such  books  for  entering  the  proceedings  of 
the  court  as  the  judge  directs.^* 

The  clerk  of  each  organized  county  is  elected  at  the 
general  election  for  the  term  of  two  years,  and  is  re- 
quired to  give  a  bond  to  the  people  of  the  state  in  the 
penal  sum  of  two  thousand  dollars,  to  be  approved  by 
the  board  of  supervisors  of  the  county.^*  The  condition 
of  the  bond  is  that  he  will  faithfully,  truly  and  impar- 

19Ju<].    Act,    ch.    1,    §34;    Comp.  Comp.  Laws  1897,   §.'514. 
Laws  1915,  §  12039.     See  also  Yale  23  How.    Stat.     (2nd    ed.)     1219; 

State   Bank   v.    Fletcher,    173   Mich.  Comp.   Laws  1915,   §  2435. 
585,   588,   powers   of  deputy   county  24Jud.    Act,    ch.    2,    §65;    Comp. 

clerk  same  as  those  of  his  principal  Laws  1915,  §  12148. 
unless  limited  by  statute.  26  How.     Stat.     (2nd     ed.)     1215, 

20Const.   Art.   VII,  sec.   11;   Jud.  1297;     Comp.    Laws    1915.    §§2431, 

Act,  ch.  2,  §65;   Comp.  Laws  1915,  2512.     In    Wayne    County,    the    ap- 

§  12148.  proval    is    to    be    by    the    board    of 

21Jud.    Act,    ch.    2,    §65;    Comp.  auditors.    Comp.  Laws  1897,  §  2531 ; 

Laws  1915,  §12148.  Comp.  Laws  1915,  §2340. 

22  How.    Stat-    (2nd    ed.)     11789; 


Clerks  of  CouEf  |  6 

tially  enter  and  record  all  orders,  decrees,  judgments  and 
proceedings  of  the  courts  whereof  he  shall  officiate  as 
clerk,  and  faithfully  and  impartially  perform  all  other 
duties  of  his  said  office  and  pay  over  all  moneys  that 
may  come  into  his  hands  as  such  clerk,  and  deliver  over 
to  his  successor  in  office  all  the  books,  records,  papers, 
seals  and  other  things  belonging  to  his  office.^®  The  bond 
of  the  clerk  must  be  filed  with  the  treasurer  of  the  county 
before  the  clerk  enters  upon  the  duties  of  his  office  and 
within  twenty  days  after  receiving  official  notice  of  his 
election.^'''  He  must  also,  before  entering  upon  his  office, 
and  within  twenty  days  after  he  has  received  official  no- 
tice of  his  election,  take  and  subscribe  the  oath  of  office 
prescribed  by  the  constitution,  before  some  officer  author- 
ized by  law  to  administer  oaths,  and  deposit  it  with  the 
clerk  of  the  county.^^ 

In  case  of  a  vacancy  in  the  office  of  clerk,  the  circuit 
judge  ma}^  make  an  appointment  to  fill  the  same.*^^  The 
appointee  may  act  until  the  expiration  of  his  predeces- 
sor's term  or  until  the  vacancy  is  filled  by  an  election.'" 

Each  county  clerk  is  required  to  appoint  one  or  more 
deputies,  to  be  approved  by  the  circuit  judge,  one  of 
whom  must  be  designated  in  the  appointment  as  the  suc- 
cessor of  the  clerk  in  case  of  vacancy  from  any  cause. 
The  appointments  so  made  may  be  revoked  at  the  pleas- 
ure of  the  clerk.  Both  the  appointment  and  revocation 
must  be  in  writing,  under  the  hand  of  the  clerk,  and  filed 
in  the  office  of  the  county  treasurer.'^ 

26  How.     Stat.     (2nd    cd.)     1216;  29  Const.  Art.  VII,  sec.  11. 
Comp.  Laws  1915,   §  24;i2.  30  Board    of    Election    Com'rs    v. 

27  How.  Stat.  (2nd  ed.)  1290,  Wayne  Circuit  Judges,  172  Mich. 
1291;     Comp.    Laws    1915,    §§2505,  430. 

2506.  31  How.    Stat.     (2nd    ed.)     1217; 

28  How.    Stat.     (2nd     ed.)     1290;       Comp.   Laws  1915,  §  2433, 
Comp.    Laws    1915,    §2505;     Const. 

Art.  XVI,  sec.  2. 


Client  329 

§  7.  Deputies. 

Where  there  is  more  than  one  circuit  judge  in  a  cir- 
cuit, the  clerk  is  required,  with  the  approval  of  the 
judges,  to  appoint  a  sufficient  number  of  deputies  to  at- 
tend upon  the  proceedings  before  such  judges. ^^ 

The  deputies  may  perform  the  duties  of  the  clerk,^^ 
and  in  turn  the  clerk  and  his  sureties  are  resiDonsible  for 
the  manner  in  which  they  perform  them.^* 

In  case  of  the  death,  resignation  or  removal  of  the 
clerk  or  a  vacancy  in  the  office  from  any  other  cause, 
the  deputy  or  deputies  are  required  severally  to  perform 
the  duties  of  the  clerk  until  the  vacancy  is  filled.^^ 

§  8.  Where  clerk  to  hold  his  office. 

The  constitution  requires  the  clerk  to  hold  his  office 
at  the  county  seat.^^ 

§  9. Duties. 

Neither  the  constitution  nor  the  statutes  prescribe  the 
duties  of  the  clerk  of  the  circuit  court,  and  it  is  held  that 
he  is  subject  to  all  the  legitimate  orders  of  the  court  of 
which  he  is  clerk."  The  statutes  provide  as  to  how 
money  paid  into  court  shall  be  invested  by  the  clerk,^^ 
the  taking  of  securities  for  the  benefit  of  suitors  in  the 
name  of  the  clerk,^®  etc. 


CLIENT 


See  Attorneys. 


82Jud.    Act,    ch.    2,    §64;    Comp.  35  How.    Stat.     (2nd    ed.)     1218; 

Laws  1915,  §  12147.  Comp.  Laws  1915,  §  2434. 

38  How.    Stat.     (2nd    ed.)     1217;  36  Const.  Art.  VIII,  sec.  4. 

Comp.  Laws  1915,  §2433.  37  Smith    v.    Kent   Circuit    Judge, 

Where,  after  default,  matter  was  139  Mich.  463. 

referred  to  the  clerk  for  assessment,  38  Jud.     Act,     ch.     2,     §§67-70; 

assessment  may  be  made  by  deputy.  Comp.    Laws    1915,    §§  12150-12153. 

Yale    State    Bank    v.    Fletcher,    173  39  Jud.  Act,  ch.  2,  §§  72-76;  Comp 

Mich.  585,  588.  Laws  1915,  §§  12155-12159. 

84  How.    Stat.     (2nd    ed.)     1218; 
Comp.  Laws  1915,  §  2434. 


330  Closing  Argument 

CLOSING  ARGUMENT 

See  Trial. 

CLUBS 

csee  Associations. 

COERCION 

See  Trial   (coercion  of  jury). 

COGNOVIT 

Cross-References:    Confession  of  Judgment;  Judgment. 

It  sometimes  happens  that  a  defendant,  not  wishing 
to  contest  the  action  of  the  plaintiff  nor  to  allow  the 
plaintiff  to  take  a  judgment  by  default,  confesses  or 
acknowledges  the  plaintiff's  claim,  or  some  part  of  it, 
by  giving  what  is  called  a  ** cognovit."  A  cognovit  is 
ttiways  given  after  the  plaintiff  has  filed  his  declaration, 
and  may  be  either  before  or  after  the  defendant  has 
pleaded.  When  given  before  the  defendant  has  pleaded, 
it  is  known  simply  as  a  ''cognovit,"  but  when  the  plea 
has  been  filed,  it  is  called  a  ''relicta  cognovit,"  from  the 
words  formerly  used  in  entering  it  upon  the  record,  * '  and 
the  defendant  relinquishing  the  plea  (relicta  verifica- 
tione)  by  him  above  pleaded."  A  cognovit  is  somewhat 
analogous  to  warrant  of  attorney  to  confess  a  judgment, 
but,  while  the  latter  is  generally  given  when  no  suit  is 
pending  between  the  parties,  the  former  always  refers 
CO  a  suit  already  commenced.  By  executing  and  deliver- 
ing a  cognovit,  a  party  waives  such  defenses  as  he  may 
have  had  to  the  plaintiff's  cause  of  action.^ 

A  cognovit  is  always  in  writing,  signed  by  the  attor- 
T^ey  for  the  defendant,  if  he  have  an  attorney,  and  speci- 
fies the  amount  to  which  the  defendant  confesses  the 
plaintiff's  claim.  It  is  frequently  given  upon  certain  con- 
ditions, and  when  such  is  the  case,  the  conditions  should 
be  specified  in  the  writing. 

1  Taber  v.  Wayne  Circuit  Judge, 
156  Mich.  652. 


Collateral  Attack  331 

The  cognovit  is  delivered  by  the  defendant  to  the  plain- 
tiff, who,  upon  filing  it  in  the  cause,  may  have  judgment 
entered  thereon  upon  any  day  in  term,  and  may  issue  ex- 
ecution on  the  judgment  immediately,  unless  the  condi- 
tions upon  which  the  cognovit  was  given  otherwise  re- 
quire, in  which  case  the  conditions  must  be  observed.  It 
has  been  held  that  judgment  on  cognovit  might  be  en- 
tered in  vacation. '^  Like  any  other  judgment,  it  may  be 
made  the  basis  of  garnishment  proceedings.' 

Form  of  Cognovit  in  Assumiysit 

(Title  of  court  and  cause.) 

Comes  now  the  said  defendant,  by  K.  L.,  his  attorney,  and  defends  the 
wrong  when,  etc.,  and  says  that  he  cannot  deny  the  action  of  the  said 
plaintiff,  nor  that  he,  the  said  defendant,  did  promise  and  undertake  in 
manner  and  form  as  the  plaintiff  in  his  declaration  in  this  cause  has 
alleged,  nor  that  the  said  plaintiff  has  sustained  damages  on  account  of  the 
non-performance  of  said  promises  and  undertakings,  over  and  above  his 
costs  and  charges  by  him,  the  said  plaintiff,  about  his  suit  in  this  behalf 
expended,  to  the  amount  of dollars. 

Dated,  etc. 

K.  L., 
Attorney  for  Defendant. 

Form  of  Judgment  on  Cognovit  in  Assumpsit 

(Title  of  cause.) 

The  said  defendant  having  appeared  in  this  cause  and  confessed  the 
action  of  the  said  plaintiff  and  that  the  said  plaintiff  has  sustained  dam- 
ages on  occasion  of  the  non-performance  of  the  several  promises  and  un- 
dertakings in  the  plaintiff 's  declaration  mentioned  to  the   sum   of 

dollars,  over  and  above  his  costs  and  charges  by  him,  the  said  plaintiff, 
about  his  suit  in  this  behalf  expended,  thereupon,  on  motion  of  J.  K., 
attorney  for  plaintiff,  it  is  considered  that  the  said  plaintiff  do  recover 
against  the  said  defendant  his  damages  aforesaid  in  the  sum  of dol- 
lars, together  with  his  costs  and  charges  aforesaid,  to  be  taxed,  and  the 
said  plaintiff  have  execution  therefor. 

COLLATERAL  ATTACK 

See  Judgments;  Execution;  Attachment;  Replevin. 

2  Hogeboom    v.    Genet,    6    Johns.  3  Starr    v.    Whltcomb,    150    Mich. 

(N.   Y.)    325.  491. 


332  Color  of  Title 

COLOR  OF  TITLE 

See  Ejectment. 

COMMENCEMENT  OF  ACTIONS 

I.  GENEiiAL  Rules 

§    1.  Governing  statutes. 

§    2.  Modes  of  commencing  actions. 

§    3.  Style  of  process. 

§    4.  Teste,  sealing,  signing  and  indorsement. 

§    5.  Indorsement  where  plaintiff  a  non-resident. 

§    6.  Delivery  of  blank  process. 

§    7.  Effect  of  conflicting  statements  in  process. 

§    8.  Amendment. 

§    9.  How  original  process  served. 

§  10.  Time  for  service. 

§  11.  Wlio  may  be  served. 

§  12.  Actions  against  corporation,  partnership  or  association. 

§  13.  Actions  against  foreign  corporations. 

§14.  Actions  .against  insurance  or  like  companies  where  state  oflBcer 

appointed  as  agent  to  receive  service. 
§  15.  Actions  against   public  corporations  and  certain  unincorporated 

boards. 

§16.  Prisoners. 

§  17.  Service  on  only  one  of  several  jointly  liable. 

§  18.  Exemptions  from  service. 

§  19.  Who  may  serve. 
§  20.  Place  for  service. 

§  21.  Waters  of  Great  Lakes. 

§  22.  How  objections  to  want  or  insufficiency  of  service  urged. 
§  23.  Eeturn  of  service. 

§  24.  Form  and  contents  where  service  by  officer. 

§  25.  Eeturn  by  private  person. 

§  26. Amendment. 

§  27.  Compelling  return. 

§  28.  Waiver  of  service. 

§  29.  Acceptance  or  acknowledgment  of  service. 

S  30.  Alias  and  pluries  writs. 

II.  By  Summons 

§  31.  When  proper. 

§  32.  Form  of  summons. 

§  33.  Time  for  issuance  and  return. 

§  34.  Service. 

§  35.  Rules  governing  both  summons  and  capias  or  all  process. 


§  1  Commencement  op  Actions  333 

III.  By  Filing  and  Serving  Declaration 

§  36.  When  proper  and  time  of  service. 

g  37.  Form  of  declaration. 

8  38.  Who  may  serve. 

§  39.  Proof  of  service. 

§  40.  Rules  common  to  all  original  j^rocess  as  applicable. 

IV.  By  Capias 
§  41.  Capias  as  original  writ. 

§  42.  Actions  which  may  be  commenced  by  capias Actions  on  contracts. 

§  43.  Actions  for  torts. 

§  44.  Privilege  from  arrest. 

8  45.  — —  Witnesses,  parties  and  attorneys. 

§  46.  Officers  of  court. 

§  47.  Prisoners. 

§48.  Electors. 

§  49.  Persons  in  military  service. 

8  50.  Senators  and  Congressmen. 

§51.  Women. 

§  52.  Second  arrest. 

8  53.  Statutory  liability  for  arrest  of  party,  attorney  or  witness. 

8  54.  Declaration  and  affidavit In  actions  ex  contractu. 

§  55.  ' In  actions  ex  delicto. 

§  56.  Necessity  for  statements  based  on  personal  knowledge. 

§  57.  Title,  date  and  filing. 

§  58.  Defects  and  how  taken  advantage  of. 

§  59.  Issuance  and  form  of  writ. 

§  60.  Fixing  and  indorsing  bail. 

§  61.  Amount  of  bail. 

8  62,  How  capias  served. 

§  63.  Return  of  service. 

§  64.  Discharge  on  bail  bond. 

§  65.  Bond  for  jail  liberties. 

V.     By  Attachment 
8  66.  In  general. 

VI.     By  Replevin 
8  67.  In  general. 

Cross-Re ferences:   Process;  Attachment;  Replevin;  Ejectment;  Bail. 

I.  General  Rules 

§  1.  Goveming"  statutes. 

Chapter  13  of  the  Judicature  Act  is  entitled  "Com- 
moncemout  of  Suits  and  Service  of  Process."     It  2:ov- 


334  Commencement  of  Actions  §  1 

ems,  so  far  as  applicable,  not  only  all  personal  actions, 
but  also  actions  of  ejectment,  replevin,  actions  begun  by- 
attachment,  and  all  special  actions  and  proceedings;  but 
there  are  special  provisions  in  other  chapters  governing 
such  particular  actions  or  proceedings  which  of  course 
control, — and  it  is  so  expressly  provided  by  the  statute, — 
where  they  are  applicable.^  Certain  of  these  general 
provisions  which  apply  regardless  of  whether  the  action 
is  commenced  by  summons,  declaration,  capias  or  other- 
wise, will  now  be  noticed,  while  in  subsequent  subdivi- 
sions the  statutes  applicable  solely  to  summons  or  capias 
or  declaration  as  process  will  be  considered.  The  Judi- 
cature Act  expressly  provides  that  wherever  the  term 
*' process"  is  used  therein  it  shall  be  deemed  to  include 
declarations,  in  suits  commenced  by  declaration,  wher- 
ever the  same  would  be  applicable.* 

The  Judicature  Act  makes  few  changes  in  the  law  as 
to  the  mode  of  commencing  suits.  The  principal  change 
is  the  one  permitting  service  outside  the  county  in  cer- 
tain cases.  Changes  in  the  provisions  for  commencing 
suit  by  declaration  and  in  the  provisions  relating  to 
capias  are  noted  hereafter. 

§  2.  Modes  of  commencing  actions. 

In  Michigan,  actions  at  law  may  be  commenced  in  the 
circuit  courts  by  (1)  original  writ,  (2)  by  declaration, 
(3)  by  writ  of  attachment,  and  (4)  by  writ  of  replevin. 
The  original  writ  in  personal  actions  is  (a)  a  summons 
or  (b)  a  capias  ad  respondendum,'  the  forms  of  which, 
as  well  as  of  the  writ  of  attachment  and  the  writ  of  re- 
plevin, are  prescribed  by  rule  of  court.*  They  are  in- 
cluded in  the  general  term  *' process,"  which  has  been 
defined  as  a  writ  issued  by  some  court  or  officer  exercis- 

IJud.    Act,    eh,    1.3,    §7;  Comp.  8  Jud.    Act,    ch.    13,    §3;     Comp. 

Laws  1915,  §  12410.  Laws  1915,  §  12406. 

2  Jud.    Act,   ch.    13,    §20;  Comp.  4  Cir.  Ct.  Rule  18,  §§3-6. 

Laws  1915,  §  12423. 


§  4  Commencement  of  Actions  335 

ing  judicial  powers.*  Actions  may  be  commenced  either 
by  summons,  declaration  or  capias  ' '  notwithstanding  the 
provisions  of  any  general,  local  or  special  act,  or  city  or 
village  charter  to  the  contrary. ' '  ^ 

§  3.  Style  of  process. 

Constitutional  and  statutory  provisions  require  that 
the  style  of  all  process  from  courts  of  record  in  this  state 
shall  be,  * '  In  the  Name  of  the  People  of  the  State  of  Mich- 
igan. ' ' '''  The  object  of  this  provision  undoubtedly  is  to 
make  this  style  the  distinguishing  feature  of  all  process, 
and  it  should,  therefore,  be  strictly  complied  with.  A 
defect  in  this  respect  is  a  jurisdictional  one.®  The  pro- 
vision does  not  require  that  the  process  shall  be  tested 
in  the  name  of  the  people,  but  that  the  style  of  the  process 
shall  be  in  the  name  of  the  people,  since  a  writ  is  proper- 
ly said  to  run  in  the  name  of  a  person  or  government, 
when  the  command,  on  the  face  of  the  writ,  appears  to 
emanate  from  that  person  or  government.® 

§  4.  Teste,  sealing,  signing  and  indorsement. 

All  process  from  courts  of  record  in  this  state  must 
be  tested  in  the  name  of  the  chief  justice  or  presiding 
justice  or  judge  or  one  of  the  judges  of  the  court  from 
which  it  issues,  must  be  sealed  with  the  seal  of  the  court, 
must  be  signed  by  the  clerk  thereof  and,  before  the  de- 
livery of  it  to  any  officer  to  be  executed,  must  be  sub- 
scribed or  indorsed  with  the  name  of  the  attorney  for 

5  Tweed  v.  Metcalf,  4  Mich.  579;  7  Const.  Art.  VII,  sec.  22;  Jud. 
Wisner  v.  Davenport,  5  Mich.  501;  Act,  ch.  13,  §2;  Comp.  Laws  1915, 
Forbes    v.    Darling,    94    Mich.    621 ;       §  12405. 

Attorney     General     v.     Jochim,     90  Applies    to    judicial     department 

Mich.  358.  only.     Attorney  General  v.   Jochim, 

Declaration  as  process,  see  infra,  99  Mich.  358. 

subd.  III.  8  Forbes  v.  Darling,  94  Mich.  621. 

6  Jud.  Act,  ch.  13,  §4;  Comp.  9  Johnson  v.  Provincial  Ins.  Co., 
Laws  1915,  §  12407.  12  Mich.  216. 


336  Commencement  of  Actions  §  4 

the  plaintiff  and  the  officer  by  whom  it  is  issued.^"  If 
there  is  a  vacancy  in  the  office  of  chief  justice  or  presid- 
ing justice  or  judge  of  the  court  from  which  the  process 
issues,  it  may  be  tested  in  the  name  of  the  chief  justice 
or  one  of  the  associate  judges  of  the  supreme  court.-^^ 

Until  so  subscribed  or  indorsed  the  process  is  incom- 
plete,^^ but  it  is  the  settled  practice  to  permit  original 
writs  to  be  indorsed  nunc  pro  tunc  by  plaintiff's  attor- 
ney, after  the  ser^dce  of  the  writ,  where  the  indorsement 
has  been  omitted.^^  Where  the  attorney  signs  his  name, 
his  business  address  should  be  added.  A  deputy  clerk 
need  not  sign  a  writ  in  the  name  of  the  clerk,"  and  the 
writ  is  not  void  although  signed  by  the  clerk  at  a  place 
in  the  county  other  than  the  county  seat.^^  Process 
should  not  be  issued  to  a  sheriff  whose  term  of  office  has 
expired.^^ 

§  5.  Indorsement  where  plaintiff  a  non-resident. 

The  statutory  provisions  as  to  the  indorsement  of  sum- 
mons and  capias,  w^here  the  plaintiff  is  a  non-resident, 
as  security  for  costs,  were  repealed  by  the  Judicature 
Act. 

§  6.  Delivery  of  blank  process. 

The  clerk  of  court  may  refuse  to  deliver  original 
process  signed  and  sealed  in  blank,  although  if  he  chooses 

lOJud.    Act,    ch.    13,    §2;    Comp.  12  Potter  v.  John  Hutchison  Mfg. 

Laws    1915,     §12405;     Howerter    v.  Co.,  87   Mich.   59. 

Kelly,  23  Mich.  337.  13  Parks  v.  Goodwin,  1  Doug.  56. 

Merely   clerical   errors    and    omis-  14  Calender  a\  Olcott,  1  Mich.  344, 

sions    are    not    fatal.      Merrick    v.  where  a  signature,  "W.  M.,  Deputy 

Mayhue,   40   Mich.   196;    Millard   v.  Clerk    and    in    the    absence    of    the 

Lenawee    Circuit    Judge,    107   Mich.  clerk ' '  was  held  sufficient. 

134;    Lyon   v.    Baldwin,    194    Mich.  15  Newbauer  v.  Cummings,  Howell, 

118.  N.  P.  19. 

llJud.    Act.    ch.    13,    §2;    Comp.  16  Fletcher    v.    Morrell,    78    Mich. 

Laws  1915,  §  12405.  176. 


^5  9  Commencement  of  Actions  337 

to  trust  an  attorney  with  such  process  it  will  not  be  held 
void  for  that  reason.^''' 

§  7.  Effect  of  conflicting  statements  in  process. 

Where  the  day  of  the  week,  if  stated  in  the  process, 
does  not  correspond  to  the  day  of  the  month  as  stated, 
the  latter  will  control.^^ 

§  8.  Amendment. 

Original  process  may  be  amended.^^  For  instance,  the 
summons  may  be  amended  to  make  the  damages  claimed 
confomi  with  the  declaration,  in  the  discretion  of  the 
court.^'' 

§  9.  How  original  process  served. 

The  statutory  method  of  serving  process  must  be  fol- 
lowed.^^  The  Judicature  Act  provides  that  writs  of  sum- 
mons shall  be  served  by  showing  the  original  writ  to  the 
defendant  and  delivering  to  him  a  copy  thereof,^^  and 
undoubtedly  this  rule  governs  as  to  all  original  process 
unless  it  is  otherwise  provided  by  statute.  It  is  not  suffi- 
cient to  serve  process  by  laying  it  on  the  body  of  a  man 
too  sick  to  understand.^^  Mere  clerical  mistakes  and 
omissions  in  the  original  and  in  the  copy  served  are  not 
fatal;  and  service  of  process  cannot  be  set  aside,  it  would 
seem,  because  the  copy  delivered  omitted  the  date  and 
the  signature  of  the  clerk. ^* 

It  is  an  old  principle  of  the  common  law,  still  recog- 
nized by  modern  jurisprudence,  that,  in  reference  to  the 

17  Sweet  v.  Cireuit  Judge,  95  21  Lyon  v.  Baldwin,  194  Mich. 
Mich.   449,   and   see   Potter  v.   John       118,  122. 

Hutchison  Mfg.  Co.,  87  Mich.  59.  22  Comp.  Laws  1015,  §12424. 

18  State  Sav.  Bank  v.  Wayne  Cir-  23  People  v.  Judge  of  Superior 
euit  Judge,  95  Mich.   100.  Court,  38  Mich.  310. 

19  See  Amendments,  and  also  Jan-  24.  Lyon  v.  Baldwin,  194  Mich, 
kovich  V.  Wayne  Cireuit  .Tudge,  188  118,  which,  however,  involved  serv- 
Mich.  284,  order  for  publication.  k-e  of  a  writ  of  garnishment. 

20  Groat    V,    Detroit    United    Ry., 
153  Mich.  165. 

1  Abbott— 22 


338  Commencement  of  Actions  §  9 

service  of  process  of  every  sort,  a  man's  house  is  his 
castle  of  defense  and  asylum,  wherein  he  should  suffer 
no  violence  or  harm;  and  so  it  is  held  that  an  officer  may 
not  break  into  the  defendant's  house  to  serve  process. 
If,  however,  the  outer  door  be  open,  the  officer  may  enter 
and  force  an  inner  door,^^  and,  if  a  man  is  once  arrested 
and  escapes,  the  officers  may  break  into  his  house  to  re- 
take him.^^  But  a  man's  house  is  not  a  castle  of  asylum 
for  a  stranger  who  may  fly  to  it.^'^ 

§  10.  Time  for  service. 

An  officer  may  serve  a  civil  process  at  any  time  on  or 
before  the  return  day  of  the  writ,  except  from  midnight 
preceding  to  midnight  following  the  first  day  of  the  week, 
and  except  also  that  the  writ  cannot  be  served  on  any 
elector  entitled  to  vote  at  any  election  during  the  day  on 
which  the  election  is  held.^*  The  enactment  designating 
certain  holidays  to  be  treated  and  considered  as  the  first 
day  of  the  week  does  not  prevent  the  service  of  any  writ 
upon  any  of  those  days.''®  But  upon  sufficient  cause  be- 
ing shown  by  affidavit,  to  the  satisfaction  of  a  judge  of 
any  circuit  court,  such  judge  may  authorize  the  service 
to  be  made  upon  Sunday  or  any  legal  holiday.^"  With- 
out such  authorization,  a  service  made  on  Sunday  is  ab- 
solutely void.^^  But  a  general  appearance  by  the  de- 
fendant would  constitute  a  waiver  of  the  defect. 

§  11.  Who  may  be  served. 

Before  the  Judicature  Act,  there  were  a  large  number 
of  statutoiy  provisions  regulating  the  question  as  to  the 

25  Stearns  v.  Vincent,  50  Mich.  Laws  1915,  §12428;  Shriver  v. 
209;    Hubbard   v.   Mace,    17   Johns.      Bean,  112  Mich.  508. 

(N.  Y.)    127.  29  How.    Stat.     (2nd    ed.)     2864; 

26  Genner  v.  Sparks,  6  Mod.  173 ;       Comp.  Laws  1915,  §  6232. 

Allen  V.  Martin,  10  Wend.   (N.  Y.)  SOJud.   Act,   ch.    13,    §26;    Comp. 

301.  Laws  1915,  §  12429. 

27Semayne'8  Case,  5  Coke  91.  31  Anderson  v.  Birce,  3  Mich.  280. 

28Jud.   Act,  ch.   13,   §25;    Comp. 


§  12  Commencement  of  Actions  339 

proper  person  to  serve  with  process,  especially  in  case  of 
coi-porations,  private  and  municipal.  These  statutes  are 
all  repealed  by  the  Judicature  Act  and  uniform  provi- 
sions covering  all  cases  provided.  However,  many  of 
the  provisions  of  the  old  statutes  are  unchanged. 

§  12.  Actions   ag-ainst  corporation,   partnership   or 

association. 

Of  course,  in  case  of  a  corporation,  personal  service 
can  only  be  made  by  serving  some  natural  person  who 
represents  it  in  some  agency  capacity.^^  The  Judica- 
ture Act  provides  that  in  courts  of  record  process  against 
a  corporation,  partnership,  or  unincorporated  voluntary 
association,  may  be  served  upon  any  (1)  officer,  (2)  di- 
rector, (3)  trustee,  or  (4)  agent  thereof,  or  (5)  by  leav- 
ing it  during  regular  office  hours  at  the  office  with  any 
person  in  charge  thereof;  and  that,  except  as  otherwise 
provided,  all  general  and  special  laws  relating  to  the 
service  of  process  on  corporations  are  repealed.*^  Un- 
der former  statutes,  it  has  been  held,  and  such  decisions 
are  applicable  to  the  new  statute,  that  the  agent  served 
need  not  be  in  charge  of  a  business  office,  and  that  service 
on  a  travelling  salesman  is  sufficient ;  '*  that  service  on 
an  officer  may  be  made  although  he  is  at  the  time  out- 
side the  county  where  the  corporation  has  its  principal 
office;^*  that  a  new  corporation,  after  consolidation,  is 

32  Cox  V.  Railway  Conductors,  etc.,  For  full  discussion  of  who  may 
Ass'n,  194  Mich.  21,5,  221,  holding  be  served  in  actions  against  corpo- 
it  a  question  of  fact  in  the  particu-  rations,  in  general,  see  4  Fletcher's 
lar  case  whether  the  person  served  Cyc.  Corp.,  §  2991  et  seq. 

was  an  agent.  Who  are  agents,  see  4  Fletcher's 

33  Jud.   Act,   eh.    U,    §  29 ;    Comp.       Cyc.  Corp.,  §  .SOOO. 

Laws  1915,  §  12432,  34  Moinct   v.   Buniham,   Stoepel   & 

Last  clause,  see  Drueke-Lynch  Co.  Co.,  143  Midi.  489. 

V.  Michigan  Bonding  &  Surety  Co.,  35  Potter  v.  John  Hutchison  Mfg. 

204  Mich.   180.  Co.,    79    Mich.    207.      See    also    Pol- 

Independcntly   of   statute,   service  lock    v.    Detroit    United    Rys.,    168 

on  one  copartner  is  suflBcient.     Rick-  Mich.  581. 

man  v.  Rickman,  180  Mich.  224,  252. 


340  Commencement  of  Actions  §  12 

not  tlie  agent  of  the  old  one  for  the  purpose  of  service 
of  process ;  ^^  and  that  while  an  officer  may  ordinarily  be 
served  jet  if  he  is  the  assignor  of  the  claim  sued  on  and 
his  interest  is  to  suppress  the  fact  of  service,  service  on 
him  is  unauthorized.^''' 

In  addition,  in  case  of  railroad  companies,  it  is  pro- 
vided that  ''whenever  it  shall  become  necessary  to  serve 
any  process,  notice  or  writing  upon  any  company  or  cor- 
poration, owning  or  operating  any  steam,  electric  or 
street  railway,  in  the  State  of  Michigan,  it  shall  be  suf- 
ficient to  serve  the  same  upon  any  station  agent,  or  ticket 
agent  at  any  station  or  depot  along  the  line,  or  at  the 
end  of  the  road  of  such  company,  or  upon  any  conductor 
in  charge  of  any  train  or  car  of  such  company  along  the 
line  of,  or  at  the  end  of  the  road  of  such  company,  and 
such  service  shall  be  deemed  as  good  and  effectual  as  if 
made  on  the  officers,  directors  or  other  agents  of  such 
company:  Provided,  That  the  modes  of  service  herein 
provided  for,  shall  be  in  addition  to  those  provided  for 
in  the  preceding  section:  Provided  further.  That  service 
shall  not  be  made  upon  conductors  of  street  cars  in  cities 
where  the  home  office  of  the  coi'poration  is  located. ' '  ^^ 

When  it  may  be  necessary  to  institute  suits  against 
any  corporation,  which  may  have  ceased  to  do  business, 
or  to  keep  up  its  organization  by  the  appointment  of  of- 
ficers or  otherwise,  or  the  term  of  whose  existence  may 
have  expired  by  limitation,  it  shall  be  competent  to  sei'\^e 
any  writ,  declaration  or  other  process  in  such  suit,  on 

36  Thompson  v.  McMorran,  132  This  statute  applies  only  to  do- 
Mich.  591.  niestic    corporations.      Grand    Trunk 

37Atwood    V.     Sault     Ste.    Marie  R.  Co.  v.  Wayne  Circuit  Judge,  106 

Light,  Heat  &  Power  Co.,  148  Mich.  Mich.  248. 

224.   See  generally  4  Fletcher's  Cyc.  The  last  proviso  relates  to  street 

Corp.,   §  3004.  railways  wholly  operated  within  the 

38  Jud.   Act,   ch.   13,    §30;    Comp.  limits  of  incorporated   cities.      Hal- 
Laws    1915,    §  12433.      See    Pollock  laday    v.    Detroit    United    Ry.,    155 
V.   Detroit   United   Rys.,   168   Mich.  Mich.  436. 
581. 


§  13  Commencement  of  x\ctions  341 

either  of  the  persons  who  may  have  been  the  last  pre- 
siding officer,  president,  cashier,  secretary  or  treasurer 
thereof.^^  It  seems  that  if  an  attempt  to  voluntarily  dis- 
solve a  corporation  is  ineffectual,  holdover  officers  may 
be  served  with  process.*"  The  appointment  of  a  receiver 
for  a  railroad  company  does  not  preclude  service  of 
process  on  a  station  agent  as  representing  the  company.*^ 

§  13.  Actions  against  foreign  corporations. 

In  case  of  foreign  corporations,  the  Judicature  Act 
provides  that  ' '  In  all  cases  where  suit  is  brought  against 
a  foreign  corporation,  process  may  be  served  upon  any 
officer  or  agent  of  such  corporation  within  this  State, 
and  any  person  representing  such  corporation  in  any 
capacity,  shall  be  deemed  an  agent  within  the  meaning 
of  this  section.  If  such  corporation  has  a  legally  desig- 
nated agent  or  attorney  in  this  State,  appointed  in  pur- 
suanjce  of  statute  for  that  purpose,  service  of  process  may 
also  be  made  upon  such  agent  or  attorney.  The  provi- 
sions of  this  section  shall  not  apply  to  the  cases  enumer- 
ated in  section  thirty- three  of  this  chapter  (relating  to 
foreign  insurance  companies,  etc.)"  "In  all  cases  of 
foreign  corporations,  which  have  paid  a  franchise  fee 
to  the  Secretary  of  State,  and  been  admitted  by  him  to 
do  business  in  this  State,  in  addition  to  the  other  methods 
of  service  of  process  herein  provided,  service  of  process 
may  also  be  made  upon  the  Secretary  of  State";  and 
there  is  a  fee  of  three  dollars  to  be  paid  to  the  Secretary 
of  State." 

89Jud.  Act,  ch.  13,  §36;  Comp.  Mfg.  Co.,  1G5  Mich.  190,  holding 
Laws  1915,  §  12439.  service    on    expert    machinist    to    be 

40  See  Simms  v.  Bialy  Hardware  &      sufficient. 

Supply  Co.,  187  Mich.  375.  Tlie  old  statute  permitting  service 

41  Ennest  v.  Pere  Marquette  R.  of  process  on  the  agent  of  a  foreign 
Co.,  176  Mich.  398.  corporation   in  cases  arising  outside 

42Jud.    Act,    ch.    13,    §§31,    32;       the    jurisdiction    was    held    not    un- 

Comp.   Laws   1915,   §§  12434,   12435.      constitutional     as     affecting     vested 

Old  statute,  see  Arnold  v.  Huber      rights  as  represented  by  a  cause  of 


342  Commencement  of  Actions  §  13 

This  statute  is  broader  than  the  old  one  in  defining 
who  shall  be  deemed  an  agent.  Under  the  old  statute,  it 
was  held  that  service  could  be  made  on  a  traveling  sales- 
man," and  that  the  officer  or  agent  served  need  not  be  in 
the  state  on  official  business.**  It  was  also  held  that  the 
statute  applied  only  to  cases  where  personal  service 
could  be  obtained." 

The  statute,  as  it  existed  before  the  Judicature  Act, 
was  held  to  be  limited  to  foreign  corporations  transact- 
ing interstate  commerce  within  the  state  and  not  to  in- 
clude corporations  which  have  obtained  the  right  to 
transact  local  business  in  the  state  by  appointing  an 
agent  for  service  of  process  and  securing  a  certificate 
of  authority  from  the  secretary  of  state."  It  seems,  how- 
ever, that  these  decisions  have  no  application,  at  least 
so  far  as  service  of  process  is  concerned,  under  the 
changed  wording  of  the  section  of  the  Judicature  Act. 

§  14.  Actions  against  insurance  or  like  companies 

where  state  oflficer  appointed  as  agent  to  receive 
service. 

The  Judicature  Act  provides  that  in  case  of  insurance 
companies  and  fraternal,  co-operative  and  mutual  bene- 
ficiary societies,  or  any  other  company  or  society  re- 
quired to  appoint  the  commissioner  of  insurance,  the 
secretary  of  state,  or  other  state  officer,  as  their  agent  on 
whom  to  serve  process,  service  "shall"  be  made  on  such 
appointed  officer,  and  that  in  cases  against  fire  and 
marine  insurance  companies  service  may  be  made  on  such 
officer  "or  in  any  other  manner  permitted  by  law."  ^'^    In 

action   in    existence    when    the    stat-  226.      Compare    Matthews    v.    Mont- 

ute  went  into  effect.     Daniels  v.  De-  real  Min.  Co.,  183  Mich.  541. 

troit,    Grand    Haven    &    M.    R.    Co.,  45  McLaren    v.    Byrnes,    80    Mich. 

16.3  Mich.  468.  275. 

43  Ryerson  v.  Wayne  Circuit  46  Yund  v.  Excelsior  Wrapper 
•Judge,  114  Mich.  352.  Co.,    185   Mich.    143;    Showen   v.   J. 

44  Shickle    H.    &    H.    Iron    Co.    v.  L.  Owens  Co.,  158  Mich.  321. 

S.    L.    Wiley    Const.    Co.,    61    Mich.  47  Jud.   Act,   ch.   13,   §33;    Comp. 


§  15  Commencement  of  Actions  343 

case  of  such  service,  it  must  be  made  in  duplicate  on  the 
officer  or  his  deputy  or,  in  their  absence,  upon  the  per- 
son in  charge  of  the  office,  and  one  of  the  duplicate 
copies  must  be  sent  by  registered  mail  to  the  secretary  or 
corresponding  officer  of  the  defendant.** 

§  15.  Actions  against  public  corporations  ajid  cer- 
tain unincorporated  boards. 

The  Judicature  Act  provides  that  '4n  suits  or  pro- 
ceedings against  municipal  and  public  corporations,  and 
certain  unincorporated  boards,  service  of  process  may 
be  made  as  follows: 

1.  Against  counties,  upon  the  chairman  of  the  board 
of  supervisors  or  the  county  clerk ;  *® 

2.  Against  the  superintendents  of  the  poor  of  counties, 
upon  any  of  the  said  superintendents; 

3.  Against  cities,  upon  the  mayor,  city  clerk  or  city 
attorney ; 

4.  Against  villages,  on  the  president  or  clerk  of  the 
village,  or  in  their  absence  upon  any  of  the  trustees 
thereof; 

5.  Against  townships,  upon  the  supervisor  or  township 
clerk ; 

6.  Against  school  districts,  upon  the  president  of  t!io 
board  of  education,  director,  moderator  or  treasurer  o^ 
such  district; 

7.  Against  any  corporate  body  or  unincorporated 
board,  now  or  hereafter  having  charge  or  control  of  any 
State  institution,  where  the  right  to  bring  such  suit  or 
proceeding  is  conferred  by  law,  upon  the  president,  sec- 
retary or  any  member  of  the  governing  body  thereof; 

Laws    1915,    §12436;    Drueke-Lyneh  Co.,  204   Mich.   180;    Taylor   v.   Da- 
Co.   V.   Michigan   Bonding  &   Surety  varn,  191  Mich.  243. 
Co.,  204  Mich.   180.  48  Jud.   Act,   ch.    13,    §  34 ;    Comp. 

Actions     against     bonding     com-  Laws  1915,   §  12437. 

panics    as    governed    by    Pub.    Acts  49  See  Curtis  v.  Charlevoix  County 

1907,    No.    321,    see    Drueke-Lynch  Sup'rs,  154  Mich.  646,  655. 
Co.   V.  Michigan  Bonding  &  Surety 


344  Commencement  of  Actions  §  15 

8,  Notices,  writs,  or  other  process  in  judicial  proceed- 
ings may  be  served  upon  any  common  council,  board, 
commission,  or  other  public  body  organized  or  existing 
under  any  law  of  this  State,  when  by  statute  no  other 
method  of  service  is  specially  provided,  by  delivering 
the  same  or.  a  certified  or  verified  copy  thereof  to  the 
president  or  chairman  of  such  council,  board,  commis- 
sion or  body,  or  to  the  clerk  or  secretary  thereof,  and  it 
shall  be  the  duty  of  the  officer  upon  whom  such  service 
shall  be  made,  at  its  next  meeting,  to  inform  such  com- 
mon council,  board,  commission,  or  other  public  body  of 
such  service,  and  it  shall  not  be  necessary  to  serve  no- 
tices, writs,  or  other  process  upon  the  individual  mem- 
bers of  such  common  council,  board,  commission,  or  other 
public  body,  and  such  council,  board,  commission,  or 
other  public  body  may  appear  aiid  answer  or  plead  in 
such  proceedings  in  such  manner  as  it  may  direct."" 

§  16.  Prisoners. 

Process  may  be  ser\'ed  upon  any  person  confined  in 
any  jail  or  prison  in  this  State,  whether  such  confinement 
be  under  civil  or  criminal  process,  by  delivering  a  true 
copy  of  such  process  to  the  sheriff,  warden  or  other  of- 
ficer in  charge  of  such  jail  or  prison,  who  shall  forthwith 
deliver  the  same  to  such  prisoner.^^ 

§  17.  Service  on  only  one  of  several  jointly  liable. 

If  an  action  is  brought  on  a  joint  obligation  or  liability, 
service  may  be  made  on  only  one  of  defendants,  the 
statute  provides ;  ^^  and  it  is  not  necessary  to  show  in- 
ability to  serve  the  other  defendants. ^^ 

50  Jud.  Act,  ch.  13,  §35;  Comp.  Statute  is  constitutional.  Brooks 
Laws  1915,  §  12438.                                     v.  Mclntyre,  4  Mich.  376. 

51  Jud.  Act,  ch.  13,  §  41 ;  Comp.  63  Sheldon  Axle  Co.  v.  Landman, 
Laws   1915,   §  12444.                                    186  Mich.  61. 

62  Comp.  Laws  1915,  §  12798.    See 
also  Judgment. 


§  16  Commencement  of  Actions  345 

§  18.  Exemptions  from  service. 

By  statute,  in  all  cases  where  the  attendance  on  court 
is  outside  the  county  of  the  residence  of  a  subpoenaed 
witness,  party  or  attorney,  he  is  exempt  from  service 
of  any  civil  process,  in  any  suit  commenced  in  the  county 
where  he  is  so  in  attendance.^* 

And  independently  of  statute,  the  general  rule  is  that 
where  a  person  is  brought  into  a  county  where  he  does 
not  reside,  by  some  process  by  which  he  is  arrested,  or 
subpoenaed  as  a  witness,  or  where  he  attends  necessarily 
as  a  witness,  even  though  not  subpoenaed,  he  is  exempt 
from  service  of  process  while  going  to,  attending  upon 
or  returning  from  the  court."  So  where  persons  not  resi- 
dents of  the  county  are  decoyed  therein  for  the  purpose 
of  service,  the  court  does  not  obtain  jurisdiction.^^  At- 
torneys are  exempt  from  service  of  process  while  attend- 
ing court  and  returning  to  the  county  of  their  resi- 
dence.^' So,  independently  of  statute,  a  non-resident 
charged  with  crime  and  brought  within  the  jurisdiction 
of  the  court  by  compulsory  process  is  exempt  from  service 
of  civil  process  while  necessarily  in  attendance  on  the 
court  and  while  coming  or  going.^*  However,  this  ex- 
emption may  be  waived.*®  A  witness  or  party  to  a  suit, 
in  the  state  for  the  purpose  of  testifying,  is  exempt  from 
service  of  process.^"  The  statutory  privilege  from  arrest 
does  not  exclude  the  common  law  privilege  of  exemption 
from  service  of  process  in  case  of  witnesses  in  the  juris- 
diction for  the  purpose  of  testifying.®^ 

64Comp.  Laws  1915,   §12446.  57  Hoffman  v.  Bay  Circuit  Judge, 

66  Jaeobson     v.     Wayne     County  113  Mich.  109. 

Judge,    76    Mich.   234;    Letherby   v.  58  MeCullough  v.  McCullough,  203 

Shaver,    73    Mich.    500;    Mitchell    v.  Mich.  288. 

Huron  Circuit  Judge,  53  Mich.  541 ;  59  McCullough       v.       McCullough, 

Stilson    V.    Greeley,    2    Mich.    N.    P.  203   Mich.  288. 

222.      But   see   Case   v.    Eorabacher,  60Coatsworth    v.    Wayne    Circuit 

15  Mich.  537.  Judge,   177  Mich.  565. 

66  See    Campbell    v.    Hudson,    106  61  Coatsworth     v.    Wayne    Circuit 

Mich.  523.  Judge,  177  Mich.  565. 


346  Commencement  of  Actions  §  19 

§  19.  Who  may  serve. 

Prior  to  the  Judicature  Act,  only  declarations  in  suits 
commenced  by  declaration,  and  process  in  chancery, 
could  be  served  by  a  private  person  not  an  officer,  but 
the  Judicature  Act  provides  that  "all  civil  process  at 
law,  or  in  equity,  issued  from  any  court  of  record,  ex- 
cept process  requiring  the  arrest  of  any  person,  or  the 
seizure  of  property,  may  be  served  by  any  person  of  suit- 
able age  and  discretion,  and  proof  of  service  shall  be 
made  by  the  affidavit  of  the  person  making  such  service, 
except  when  such  service  is  made  by  an  officer  of  the 
court  authorized  to  serve  process,  when  his  certificate  of 
service  shall  be  sufficient  proof  thereof. "  ^^  If  process 
is  served  by  an  officer,  the  sheriff  or  his  under-sheriff 
or  deputy  is  the  proper  person  to  serve  it.  If  the  sheriff 
is  a  party  to  the  action  or  interested  therein,  any  coroner 
may  serve  any  process,  order  or  decree ;  and  if  an  under- 
sheriff  or  deputy  sheriff  is  a  party,  service  may  be  made 
by  the  sheriff  or  by  any  under-sheriff  or  deputy  who  is 
not  a  party  to  the  action."  If  both  the  sheriff  and  cor- 
oner are  parties  or  interested  or  incapacitated  to  act, 
the  circuit  judge  may  appoint  a  person  to  serve  the 
process.^* 

62  Jiul.    Act,   eh.   13,    §22;    Comp.  the     sheriff     and     coroners    of    the 

Laws  1915,   §  12425.  county  are  parties,  or  interested,  or 

Who    may     serve    declaration    as  incapacitated  to   act;    such   appoint- 

process,   see   §  38,   post.  ment  shall  be  made  in  writing  under 

63Jud.   Act,  ch.   13,    §38;    Comp.  the  hand  of  the  judge,  and  filed  in 

Laws  1915,  §  12441.  the   cause;    and    the   person    so    ap- 

64  The  judge  of  any  circuit  court  pointed   shall   have   the   same   power 

of   this   state   may   in   any   suit,   on  conferred  upon  him,  and  proceed  in 

the  application   of  any  party  there-  the  same  manner  prescribed  for  the 

to  by  petition  signed  by  such  party  sheriff    in   the    performance    of   like 

or    by    his    attorney    or    agent    duly  duties;     the    fees    payable    to    such 

verified,   showing  the  facts,  appoint  person    shall   be   the    same   as   those 

some    disinterested    person    to    serve  payable  to  sheriffs  by  virtue  of  the 

any   process    or   other   papers,   orig-  provisions  of  law  in  that  behalf  for 

inal  or  final,  or  to  do  any  act  there-  like  services.     Such   judge  may,  in 

in   which   the   sheriff   by   law  might  his  discretion,  require  the  person  so 

do    in    said    cause,    in    cases    where  appointed,  before  acting  under  said 


§  20  Commencement  of  Actions  347 

Sheriffs,  under-slierift's  and  deputy-sheriffs,  ''may  ex- 
ecute all  such  original  or  final  process  as  shall  be  in  their 
hands  at  the  expiration  of  the  term  for  which  such 
sheriffs  were  elected,  the  execution  of  whicli  shall  have 
been  begun  by  him,  and  shall  made  [make]  due  returns 
thereof  in  their  own  name;  and  in  case  of  a  vacancy  in 
the  office  of  sheriff,  every  deputy  in  office  under  him, 
may  execute  any  writ  or  process  in  his  hands,  or  in  the 
hands  of  such  sheriff,  at  the  time  such  vacancy  happened, 
and  shall  have  the  same  authority,  and  be  under  the  same 
obligation  to  serve  and  execute  and  return  the  same,  as 
if  such  sheriff  had  continued  in  office. ' '  ^^ 

In  case  of  proceedings  against  inmates  of  any  state 
hospital  or  asylum,  service  of  any  citation,  order  or 
process  must  be  made  by  the  medical  superintendent  in 
charge  thereof  or  by  some  one  designated  by  him.®^ 

§  20.  Place  for  service. 

Process  issued  out  of  the  circuit  court  for  any  county 
may  be  served  anywhere  within  that  county,  but,  as  a 
general  rule,  not  outside  of  it,^'''  except  as  hereafter  no- 
ticed. By  statute,  however,  where  the  suit  is  brought  in 
the  county  in  which  the  defendant  or  one  of  several  de- 
appointment,  to  give  a  bond  to  the  respecting  sheriffs,  so  far  as  the 
people  of  this  state  in  such  penal  same  may  be  applicable.  Jud.  Act, 
sum,  and  with  such  surety  or  sure-  ch.  13,  §§23,  24;  Comp.  Laws  1915, 
ties    as    such    judge    may    approve,       §§  12426,  12427. 

conditioned     for    the    faithful    per-  65  Jud.   Act,   ch.   13,    §39;    Comp. 

formance    and     execution    by    such      Laws     1915,     §  12442 ;     Fletcher    v. 
person    of   his    duties   in    such    case,       Morrell,  78  Mich.  176,  180. 
without  fraud,  deceit  or  oppression,  66  Jud.   Act,   ch.    13,    §37;    Comp. 

and  for  the  payment  of  all  moneys       Laws   1915,   §  12440. 
that    may   come    into   his   hands    by  67  Turrill  v.  Walker,  4  Mich.  177; 

virtue    of    such    appointment.      The       McEwan  v.   Zimmer,   38   Mich.   765 ; 
person   so   designated   and   receiving       Baxter  v.  Grove,  92  Mich.  291. 
such   process   or   other   papers,   orig-  As  to  service  of  process  in  actions 

inal  or  final,  shall,  in  respect  to  the  instituted  by  the  Attorney  General 
same,  be  deemed  a  coroner  of  the  in  the  name  of  the  state  in  Ingham 
county,  and  shall  be  liable  in  all  County  Circuit  Court,  see  Pub.  Acts 
respects  to  all  the  provisions  of  law       1919,  No.  232. 


348  Commencement  of  Actions  §  20 

fendants  resides,  the  writ  may  be  served  anywhere  in  the 
state  where  the  party  upon  whom  service  is  to  be  made 
can  be  found;  ^®  and  where  a  personal  transitoiy  action  is 
commenced  in  the  county  where  the  plaintiff  resides 
against  a  defendant  or  defendants  residing  without  that 
county,  while  service  must  be  made  in  the  county  where 
the  suit  has  been  commenced,  yet  if  service  is  made  upon 
one  defendant  in  that  county,  the  other  defendants  may 
be  served  anywhere  in  the  state. ^® 

In  the  latter  case,  the  statute  contemplates  a  service 
at  home  on  one  or  more  defendants  before  the  service  in 
another  county,  and  safe  practice  requires  a  return  of 
''not  found"  in  the  home  county  as  a  preliminaiy  to 
service,  outside  of  the  county.  The  statute  contemplates 
some  evidence  of  service  in  the  home  county  as  a  founda- 
tion for  service  elsewhere  and  does  not  intend  that  an 
absent  defendant  shall  be  pursued  until  service  is  made 
and  proved  on  the  other  within  the  jurisdiction.  That 
is  a  condition  precedent.  A  defendant  has  a  right  to 
know  whether  he  is  subject  to  the  jurisdiction,  and 
where  that  depends  upon  a  previous  service  upon  some 
one  else,  that  can  be  shown  only  by  a  return  of  service 
or  by  an  appearance.'''^ 

68  Jud.  Act,  ch.  13,  §  27,  subd.  2 ;       Judge   of  Wayne   Circuit   Court,   22 
Conip.  Laws  1915,  §  12430,  subd.  2.       Mich.   493.      In   the  Judicature   Act 

These  provisions  of  the  Judicature  the  word  "joint"  is  not  used. 

Act   change  the  law  as  it   formerly  Where     two     railroad     companies 

existed.  were  charged  with  injury  to  a  pas- 

69  Jud.   Act,   ch.   13,    §27;    Comp.  scnger  by  failure  to  light  the  plat- 
Laws  1915,  §  12430.  forms  at  a  junction,  service  of  proc- 

TJnder   the    statute    as    it    existed  ess  on  one  outside  the  county  after 

prior    to    1915,    the    words    "joint  service     on     the     other     within     the 

defendants"    were    used    and    there  county  was  sufficient  under  the  1901 

was  some  conflict  as  to  whether  it  statute.    Boyle  v.  Waters,  199  Mich, 

was  confined  to  cases  where  the  lia-  478. 

bility    was    joint.       See    Brown    v.  70Denison     v.     Smith,     33     Mich. 

Bennett,   157   Mich.   654;    Rosenthal  155;   Clark  v.  Lichtenberg,  33  Mich. 

V.  Rosenthal,  154  Mich.  533;  Church  307;  Munn  v.  Haynes,  46  Mich.  140; 

V.  Edson,  39  Mich.  113;    People  v.  Allison  v.  Kinne,  104  Mich,   141. 


§  22  .Commencement  of  Actions  349 

The  fact  that  the  original  summons  is  returned  after 
being  served  on  only  a  part  of  the  joint  defendants  and 
before  the  return  day  does  not  preclude  the  issuance 
and  sei'vice  of  a  subsequent  summons  before  the  return 
day;  and  even  if  the  return  was  premature,  it  does  not 
render  void  the  service  of  the  subsequent  summons,  since 
at  most  nothing  more  than  an  irregularity  of  which  only 
the  plaintiff  could  complain.''^ 

By  statute  process  may  also  be  served  anywhere  with- 
in the  state  where  the  party  may  be  found  (1)  in  eject- 
ment cases  and  in  all  other  cases  where  suit  is  required 
to  be  brought  in  the  county  where  the  subject  matter  of 
the  suit  is  located  or  where  the  fact  happened  out  of 
which  the  cause  of  action  arose,'^^  and  (2)  in  any  suit 
brought  upon  any  bond  required  by  law  to  be  filed  in 
any  probate  court.''* 

§  21.  Waters  of  Great  Lakes. 

Where  process  may  be  served  anywhere  within  the 
state,  it  may  be  served  on  any  of  the  waters  of  the  Great 
Lakes  within  the  state;  and  the  statute  also  provides  for 
service  of  process  on  the  waters  of  such  lakes  where 
process  is  required  to  be  served  within  the  county.'^* 

§  22.  How  objections  to  want  or  insulRciency  of  service 
urged. 

If  the  service  of  process  is  invalid,  and  no  question  of 
fact  is  involved,  the  proper  practice  is  to  appear  special- 

Undcr  the  Judicature  Act,  where  ing    that    the    practice    before    the 
some   of  the  defendants   do   not  re-  Judicature   Act   should   remain   sub- 
side   in    the   county   where    the    suit  stantially  as  before, 
is   brought,    it   is   necessary   to   file  71  Hakes    v.    Macklin,    170    Mich, 
proof  of  service  of  the  writ  on  the  228. 

defendant  served  in   the  county  be-  72  Jud.  Act,  eh.  13,  §27,  subd.  3; 

fore   the   original   writ   is  sent   into  Conip.  .Laws  1915,  §  12430,  subd.  3. 

and   served   in    another   county,   and  73  Jud.  Act,  ch.  13,  §  27,  subd.  3 ; 

it  is  not  necessary  to  issue  an  alias  Comp.  Laws  1915,  §  12-130,  subd.  3. 

summons    against    the    nonresidents.  74  Comp.  Laws  1915,  §  12431,  new 

Engel  V.  Smith,  200  Mich.  395,  hold-  section. 


350  Commencement  of  Actions-  §22 

ly  and  move  that  proof  of  service  be  quashed,  support- 
ing the  motion  by  affidavits.'^  However,  the  court  will 
refuse,  in  such  a  proceeding,  to  try  disputed  questions 
of  fact  upon  affidavits,  and  the  proper  practice  where 
there  are  disputed  questions  of  fact  is  to  frame  an  issue 
by  a  proper  plea.'^ 

§  23.  Return  of  service. 

It  is  the  duty  of  the  officer  or  person  to  whom  a  sum- 
mons or  capias  is  delivered  to  make  proof  of  serv- 
ice thereof  immediately  after  service,  or,  in  case  of 
no  service,  immediately  after  the  return  day  mentioned 
in  the  summons.  If  there  be  more  than  one  defendant, 
the  proof  of  service  must,  at  the  request  of  the  plaintiff, 
be  made  immediately  after  service  on  each  defendant; 
and,  in  such  case,  the  proof  of  service  may  be  indorsed 
upon  or  attached  to  a  copy  of  the  writ  and  the  original 
retained  until  the  return  day  for  service  on  the  other 
defendants." 

§  24.  Form  and  contents  where  service  by  officer. 

The  proof  of  service  where  service  is  made  by  an  of- 
ficer, should  be  by  the  certificate  of  the  officer,  indorsed 
upon  the  writ,  stating  the  time  and  manner  of  the 
service,"  and  should  always  contain  sufficient  matter  to 
inform  the  court  that  lawful  service  has  been  made.'® 
It  is  not  necessary  that  the  officer  swear  to  the  service, 
his  certificate  being  enough.^"  The  return  may  be  made 
either  to  the  office  of  the  clerk  of  the  court  in  which  the 
action  is  pending  or  to  the  attorney  whose  name  is  in- 

76  Yund  V.  Excelsior  Wrapper  Co.,  77  Cir.  Ct.   Rule  18,   §  1. 

185   Mich.    143;    Daniels   v.   Detroit,  78  .Jud.    Act,   ch.   13,    §38;    Comp. 

G.  H.  &  M.  R.  Co.,  163   Mich.  468,  Laws  1915,  §  12441. 

470.  79  Town  v.   Tabor,   34   Mich.   262. 

76  Sherrill  v.  Grand  Trunk  R.  Co.  80  Jud.   Act,   ch.   13,    §  22 ;    Comp. 

of  Canada,  161  Mich.  495.  Laws  1915,  §  12425. 


§  24  Commencement  of  Actions  351 

dorsed  upon  the  writ.^^  If  service  be  made  by  an  under 
sheriff  or  a  deputy  sheriff,  it  is  not  essential  that  he 
make  the  return  in  the  name  of  his  sheriff.  A  return  in 
the  name  of  the  under  sheriff  ^^  or  of  the  deputy  sheritf  ®^ 
making  the  service  is  valid.  But  proof  of  service  can- 
not rest  in  parol.®* 

A  return  that  "due  service"  was  made  is  insufficient, 
since  the  time  and  manner  of  the  service  must  be  stated,*' 
but  where  the  place  of  service  is  not  shown,  it  will  be 
presumed,  where  service  is  made  by  an  officer,  that  it  was 
made  within  his  county.*®  A  return  of  service  of  process 
on  a  named  person,  '*city  ticket  agent,"  is  insufficient 
where  it  does  not  appear  therefrom  who  he  is  agent  for.*'^ 

The  return  should,  of  course,  be  according  to  the  facts. 
If  false,  the  officer  is  liable  to  an  action  for  a  false  re- 
turn. But  whether  false  or  true,  it  is  conclusive  upon 
the. parties  until  amended,  and,  if  showing  legal  service, 
confers  jurisdiction.**  However,  the  return  of  the  offi- 
cer may  be  contradicted  by  affidavit  on  a  motion  made 
in  the  same  action  to  set  aside  the  return.*^ 

81  Jud.  Act,  eh.  13,  §  38 ;  Comp.  fieient  as  a  service  upon  the  rail- 
Laws  1915,  §  12441.  road   company,   for   failure   to   show 

82  Calender  v.  Olcott,  1  Mich.  344 ;  for  whom  he  was  agent.  Price  v. 
Allen  V.  Hazen,  26  Mich.  142.  Delano,   187  Mich.   49. 

83  Wheeler  v.  Wilkins,  19  Mich.  88  Facey  v.  Fuller,  13  Mich.  527; 
78.  Green  v.  Kindy,  43  Mich.  279;  Low 

84  King  V.  Bates,  80  Mich.  367.  v.   Mills,   61   Mich.   35;    Goodrow  v. 

85  People's  Mut.  Ben.  Soc.  v.  Douglas,  70  Mich.  513;  Johnson  v. 
Wayne  Circuit  Judge    97  Mich.  627.  Mead,  73  Mich.  326;  Allured  v.  Vol- 

86Norvell    v.    McHenry,    1    Mich.  ler,      112      Mich.      357;      Stork      v. 

227,  234.  Michaels,  52  Mich.  260. 

87  A  return  of  service  in  an  action  Return   of  service   in  sister  state 

against    receivers,    for    personal    in-  is  not   conclusive  to  support   a  for- 

juries  sustained  before  the  receivers  eign   judgment.      Farrow   v.   Protec- 

were  appointed,  stating  that  it  was  tive   Ass'n,   178  Mich.   639. 

served   on  the  company  by  deliver-  89  Detroit  Free  Press  Co.  v.  Bagg, 

ing  a  copy  thereof  to  a  certain  per-  78  Mich.  650. 
son,   "city   ticket   agent,"  is   insuf- 


352  Commencement  of  Actions  §  25 

§25.  Return  by  private  person. 

A  return  made  by  a  private  person  must  be  supported 
by  liis  affidavit,^"  and  it  is  subject  to  contradiction.^^  Tlie 
contents  of  the  affidavit  should  be  the  same  as  in  case 
of  a  certificate  by  an  officer. ^^ 

§  26.  Amendment. 

TliG  return  of  an  officer  may  be  amended  in  matter  of 
form,  in  the  discretion  of  the  court,  as  well  before  as 
after  judgment,^^  although  an  amendment  cannot  be 
compelled  by  the  court.^^ 

§  27.  CompeUing-  return. 

If  the  sheriff  or  other  officer  or  authorized  person  fails 
to  return  any  process  to  him  delivered,  on  or  before  the 
return  day  therein  specified,  any  party  interested  in  pro- 
curing a  return  may  cause  a  rule  to  be  filed,  requiring 
the  officer  or  person  to  return  the  process  within  five  days 
after  service  of  notice  of  such  rule;  and  if  the  process 
be  not  returned  within  the  time  specified  in  the  rule,  on 
filing  with  the  clerk  an  affidavit  of  the  service  of  such 
notice,  and  of  the  deliveiy  of  the  process  to  the  officer 
or  person  to  be  served,  the  default  of  the  officer  or  per- 
son in  not  making  return  may  be  filed,  and  thereupon  an 
attachment  may  be  issued  of  course  against  him  to  com- 
pel a  retura.®^  The  process  of  attachment  was  the  method 
immemorially  used  by  the  superior  courts  of  justice  in 
England  for  punishing  contempts,^^  and  is  employed  in 
this  state  under  the  provisions  of  the  statute  which  pre- 

90MeCaslin    v.    Camp,    26    Mich.  Judge,    138    Mich.    126.      See   same 

390.  case    in    136    Mich.    23.     And    see 

91  Campbell      v.      Wayne      Circuit  Lyon    v.    Baldwin,    194    Mich.    118, 
Judge,  111  Mich.  247;  Detroit  Free  121. 

Press  Co.  v.  Bagg,  78  Mich.  650.  96  Cir.    Ct.    Rule    20;     Jud.    Act, 

92  See   §24,  ante.  eh.     5,      §6;      Comp.     Laws     1915, 

93  Comp.    Laws    1915,    §  12481.  S  12273. 

94Flynn     v.     Kalamazoo     Circuit  96  4  Cooley's  Bl.   Comm.  283. 


§  29  Commencement  of  Actions  353 

scribes  in  detail  the  practice  in  reference  thereto.®'  This 
process  of  attachment  is  merely  intended  to  bring  the 
party  into  court.®*  It  is  to  be  looked  upon  rather  as  a 
civil  execution  for  the  benefit  of  the  injured  party, 
though  carried  on  in  the  shape  of  a  criminal  process  for 
a  contempt  of  the  authority  of  the  court.®® 

The  officer  to  whom  the  attachment  is  delivered  is  re- 
quired to  return  it  by  the  return  day  specified  therein 
without  any  previous  rule  or  order  for  that  purpose,  and 
in  case  of  default,  an  attachment  may  be  issued  against 
him  upon  being  allowed  by  a  judge  of  the  court,  or  by 
an  officer  authorized  to  perform  the  duties  of  such  judge, 
upon  proof  of  such  default.  In  such  allowance,  the  cause 
of  issuing  the  attachment  should  be  stated,  and  that  the 
defendant  is  not  to  be  discharged  upon  bail  or  in  any 
other  manner  but  by  the  order  of  the  court.^ 

§28.  Waiver  of  service. 

A  party  may  waive  service  of  process  by  any  act  clear- 
ly evidencing  an  intention  to  do  so,  as  by  acceptance  of 
''due  personal  service"  outside  the  territorial  jurisdic- 
tion.^ 

§  29.  Acceptance  or  acknowledgment  of  service. 

The  effect  of  an  affidavit  showing  written  acceptance 
or  acknowledgment  of  service  of  process,  as  a  return 
or  proof  of  service,  is  provided  for  by  rule  of  court,'  and 
is  the  same  whether  the  acceptance  be  of  service  of 
''process,  pleading  or  notice."*  No  default  for  want  of 
appearance  can  be  entered  unless  the  genuineness  of  the 
signature  is  shown.^     Where  defendant  accepts  service 

97  Jud.  Act,  ch.  5,  Comp.  Laws  3  Cir.  Ct.  Rule  14,  providing  that 
1915,  §  12268  et  seq.  affidavit  shall   have    same   effect   aa 

98  4  Cooley's  Bl.  Comm.  287.  a    return    or    other    legal    proof    of 

99  4  Cooley's  Bl.  Comm.  285.  service. 

IJud.    Act,    ch.    5,    §17;    Comp.  4  See  Service  op  Papers. 

Laws  1915,  §  12284.  6  Johnson  v.  Delbridge,  35   Mich. 

2  Jones  v.  Merrill,  11.'?  Mich.  443.  4:?6. 
1  Abbott— 2:{ 


354  Commencement  op  Actions  §  29 

and  indorses  a  permit  to  plaintiff  "to  proceed  with  the 
case  as  though  service  had  been  made  as  commanded  in 
said  summons,"  the  court  has  jurisdiction  although  de- 
fendant was  without  the  jurisdiction  when  he  made  such 
indorsement.^  Where  the  acceptance  of  service  purports 
to  be  made  on  behalf  of  a  corporation,  proof  of  the  agency 
must  be  filed.'' 

§  30.  Alias  and  pluries  writs. 

On  the  return  of  a  writ  unserved,  a  further  writ,  desig- 
nated as  an  ''alias"  or  a  "pluries,"  as  the  case  may  be, 
may  be  issued  at  any  time  within  ten  days  after  the  filing 
of  such  return,  or  at  any  time  thereafter  by  leave  of 
court  upon  a  showing  by  affidavit  satisfying  the  court 
that  service  could  not,  with  reasonable  diligence,  have 
been  made  sooner.' 

The  form  of  an  alias  or  a  pluries  writ  is  the  same  as 
that  of  the  original  writ,  with  the  insertion  after  the 
words,  ' '  You  are  hereby  commanded, ' '  of  the  words,  '  *  as 
we  have  formerly  commanded  you,"  in  the  case  of  the 
alias,  and  of  the  words,  "as  we  have  often  commanded 
you,"  in  the  case  of  a  pluries  writ. 

Where  the  writ  is  a  capias,  a  copy  of  the  declaration 
and  supporting  affidavit  upon  which  the  first  writ  was 
founded  should  be  served  upon  the  defendant  with  a 
copy  of  the  alias  or  pluries,  and,  for  convenience  in  mak- 
ing the  return,  a  copy  should  also  be  attached  to  the 
alias  or  pluries  itself.  It  is  not  necessary  to  make  a  new 
declaration  and  affidavit  for  the  alias  or  pluries,  because 

6  Allured  v.  Voller,  107  Mich.  Kule  applies  to  writs  of  attach- 
476.  See  also  Jones  v.  Merrill,  113  ment  as  well  as  other  writs.  Van 
Mich.  433.  Benschoten  v.  Fales,  126  Mich.  176. 

7  Hebel  v.  Amazon  Ins.  Co.,  33  Right  to  alias  writ  independently 
Mich.  400.  of  rule  of  court  or  statute,  see  Ax- 

8Cir.     a.     Eule    18,     §2,    which  tell    v.    Gibbs,    52    Mich.    639;    Bell 

changes  former  Cir.  Ct.   Rule  1  by  v.  Mecosta  Circuit  Judge,  26  Mich, 

adding     the     alternative     "at     any  414. 
time, ' '  etc.  Alias  replevin  writ,  see  Replevin. 


§  31  Commencement  of  Actions  355 

such  writs  are  founded  upon  the  return  of  the  preceding 
writ  and  not  upon  the  original  declaration  and  affidavit. 
If  an  order  to  hold  to  bail  has  been  made  in  the  case,  a 
copy  of  it  should  be  served  with  the  alias  or  pluries. 

If  a  writ  purporting  to  be  an  alias  summons  has  no 
proper  basis  as  an  alias  because  the  previous  writ  had 
been  informally  returned,  the  second  writ  is  not  void  but 
should  be  treated  as  a  new  writ,  in  case  the  first  suit 
goes  down,  provided  limitations  have  not  run.  In  other 
words,  where  an  alias  summons  cannot  be  sustained 
as  such,  it  may  be  treated  as  a  new  writ  and  sustained 
where  limitations  have  not  run.® 

An  interesting  question  which  presents  itself  is 
whether  an  alias  taken  out  a  considerable  time  after  the 
expiration  of  the  ten  days  is  sufficient  to  prevent  the  bar 
of  limitations,  where  the  period  of  limitations  expires 
between  the  time  of  the  first  writ  and  of  the  alias  writ. 
The  answer  would  seem  to  be  according  to  whether  the 
alias  writ  was  sued  out  within  a  reasonable  time,  not  to 
exceed  one  year.^° 

II.  By  Summons 

§  31.  When  proper. 

A  summons  is  an  original  writ,^^  and  may  be  used  in 
actions  brought  for  the  recoveiy  of  any  debt  or  for  dam- 
ages only,  and  now  also  in  actions  of  ejectment. ^^ 

9Frantz    v.    Detroit    United    Ry.,  12  Jud.    Act,    ch.    13,    §4;    Comp. 

147  Mich.  199.  Laws  1915,  §  12407. 

10  See  Searl's  Mich.  Ct.  Rules,  It  is  applicable  in  the  actions  of 
p.  100  et  seq.,  and  also  Colling  v.  assumpsit,  trespass  on  the  case,  and 
McOregor,  144  Mich.  651 ;  Peck  v.  ejectment,  but  not  in  replevin. 
German  Fire  Ins.  Co.,  102  Mich.  52;  Replevin  can  be  commenced  only  by 
Johnson  v.   Mead,   58  Mich.  67,  all  writ  of  replevin. 

of    which,    however,     were     decided  The  clerk  is  under   no   obligation 

under  the  old  rule  limiting  the  time  to  issue  to  an  attorney  a  summons, 

to  ten  days.  signed  and  sealed  in  blank,  but  if 

11  Jud.  Act,  ch.  1,3,  §3;  Comp.  he  chooses  to  do  so  the  writ  will 
Laws  1915,  §  12406.  not    be    held    void    for    that    reason 


356  Commencement  of  Actions  §  32 

§  32.  Form  of  summons. 

The  form  of  the  summons  has  been  prescribed  by 
statute  and  rule  of  court.  Like  the  capias  ad  responden- 
dum, the  summons  should  be  entitled  in  the  court  out  of 
which  it  issues,  should  be  styled  ''In  the  Name  of  the 
People  of  the  State  of  Michigan,"  should  be  tested  in  the 
name  of  one  of  the  judges  of  the  court  from  which  it 
issues,  should  be  sealed  with  the  seal  of  the  court  and 
signed  by  the  clerk  thereof,  and,  before  delivery  to  any 
officer  to  be  executed,  should  be  subscribed  or  indorsed 
with  the  name  of  the  attorney  for  the  plaintiff  and  the 
officer  by  whom  it  is  issued.^'  Like  the  capias,  it  notifies 
the  defendant  to  appear  in  person  or  by  attorney  within 
fifteen  days  after  sei'vice  of  the  writ  upon  him,  to  answer 
to  the  suit  of  the  plaintiff  according  to  the  rules  and 
practice  of  the  court." 

The  attorney,  when  subscribing  or  indorsing  the  writ, 
should  add  his  business  address  for  the  information  and 
use  of  the  adverse  party  or  his  attorney  in  making  service 
of  papers  in  the  subsequent  progress  of  the  suit."  Un- 
der the  new  rules  of  court,  the  summons  is  directed  to 
the  defendants  instead  of  being  directed  to  the  sheriff. 

Form  of  Summons  as  Set  Forth  in  Rule  18  of  the  Circuit  Court  Eulei 

State  of  Michigan, 

The  Circuit  Court  for  the  County  of 

In  the  Name  of  the  People  of  the  State  of  Michigan. 

To 

You  are  hereby  notified  that  a  suit  has  been  commenced  against  you  in  the 

circuit  court  for  the  county  of ,  by   ,  as  plaintiff,  and  that  if 

you  desire  to  defend  the  same  you  are  required  to  have  your  appearance 
filed  or  entered  in  the  cause,  in  accordance  with  the  rules  and  practice  of 
the  court,  in  person  or  by  attorney,  within  fifteen  days  after  service  of  this 
summons  upon  you.     Hereof  fail  not,  under  penalty  of  having  judgment 

although    not    used    for    some    time  13  Jud.    Act,    ch.    13,    §2;    Comp. 

afterwards.     Sweet  v.  Newaygo  Cir-  Laws  1915,  8  1240.'5. 

cuit  Judge,  95  Mich.  449;  Potter  v.  14  Cir.    Ct.    Rule    18. 

John  Hutchison  Mfg.  Co.,  87  Mich.  15  See  Cir.  Ct.  Rule  18. 

59. 


§  32  Commencement  of  Actions  357 

taken  against  you  by  default.     The  plaintiff  claims  damages  in  said  suit 

not  exceeding   dollai's.     Service  of  this  summons  shall  be  made  on 

or  before  the day  of ,  191.  .,  which  is  the  return  day  hereof. 

Witness,  Hon ,  circuit  judge,  and  the  seal  of  said  court,  at  the 

of    ,   the  place   of   holding   said  court,   this    day   of 

191... 


Clerk. 

) 

Plaintiff's  Attorney. 

> 

Business  Address. 

Form  of  Summons  at  tlie  Suit  of  a  Sheriff 

State  of  Michigan. 

The  Circuit  Court  for  the  County  of 

In  the  Name  of  the  People  of  the  State  of  Michigan. 

To  C.  D.: 

You  are  hereby  notified  that  a  suit  has  been  commenced  against  you,  in 

the  circuit  court   for  the  county   of    ,  by   A.   B.,  as   sheriff  of  the 

county  of    ,  as  plaintiff,  and  that   (as  in  ordinary  summons  to  the 

end). 

Form  of  Summons  at  the  Suit  of  an  Infant 

State  of  Michigan. 

The  Circuit  Court  for  the  County  of 

In  the  Name  of  the  People  of  the  State  of.  Michigan. 

To  C.  D. : 

You  are  hereljy  notified  that  a  suit  has  been  commenced  against  you,  in 

the  circuit  court  for  the  county  of   by  A.  B.,  an  infant,  who  sues 

by  G.  H.,  who  is  admitted  by  said  court  to  prosecute  for  him  as  his  next 
friend,  as  plaintiff,  and  that   (as  in  ordinary  summons  to  the  end). 

Form  of  Summons  at  the  Suit  of  an  Executor 

State  of  Michigan. 

The  Circuit  Court  for  the  County  of 

In  the  Name  of  the  People  of  the  State  of  Michigan. 

To  C.  D. : 

You  are  hereby  notified  that  a  suit  has  been  commenced  against  you  in 

the  circuit  court  for  the   county  of    by  A.   B.,  as  executor   of  the 

last  will  and  testament  of  E.  F.,  deceased,  as  plaintiff,  and  that    (as  in 
ordinary  summons  to  the  end). 


358  Commencement  of  Actions  §  32 

Form  of  Summons  at  the  Suit  of  an  Administrator 

State  of  Michigan. 

The  Circuit  Court  for  the  County  of 

In  the  Name  of  the  People  of  the  State  of  Michigan. 
To  CD.: 

You  are  hereby  notified  that  a  suit  has  been  eonimenced  against  you  in 

the  circuit  court  for  the  county  of    by  A.  B.,  as  administrator  of 

all  and  singular  the  goods,  chattels,  and  credits  which  -were  of  E.  F.,  de- 
ceased, at  the  time  of  his  death,  who  died  intestate,  as  plaintiff,  and  that 
(as  in  ordinary  summons  to  the  end). 

Form  of  Summons  to  Bring  in  New  Defendants,  When  Suit  Is  Commenced 
by   Original   Writ,    Attachment,    or   Writ   of   Replevin 

State  of  Michigan. 

(Title  of  court  and  cause.) 

In  the  Name  of  the  People  of  the  State  of  Michigan. 
To  E.  F.: 

You  are  hereby  notified  that  you  have  been  made  a  defendant  in  this 
cause,  pursuant  to  an  order  of  said  court  and  the  amendment  of  the  said 
plaintiff's  declaration  therein,  and  that,  if  you  desire  to  defend  the  same, 
you  are  required  to  have  your  appearance  filed  or  entered  in  said  cause  in 
accordance  with  the  rules  and  practice  of  the  court,  in  person  or  by 
attorney,  within  fifteen  days  after  service  of  this  summons  upon  you. 
Hereof  fail  not,  under  penalty  of  having  judgment  taken  against  you  by 

default.     The  plaintiff  claims  damages  in  said  suit  not  exceeding    

dollars.     Service   of  this  summons  shall  be  made  on  or  before  the    

day  of ,   ,  which  is  the  return  day  hereof. 

Witness,  Hon.  J.  S.,  Circuit  Judge,  and  the  seal  of  said  court,  at  the 
of ,  the  place  of  holding  said  court,  this day  of , 


J.  W., 
Clerk. 
J.  K.,  Plaintiff's  Attorney. 

Business  address:   ,  Mich. 

Form  of  Summons  to  Bring  in  New  Defendants,   Wlien  Suit  Is  Com- 
menced by  Declaration 
State  of  Michigan. 

(Title  of  court  and  cause.) 

In  the  Name  of  the  People  of  the  State  of  Michigan. 
To  E.  F.: 

You  are  hereby  notified  that  you  have  been  made  a  defendant  in  this 
cause,  pursuant  to  the  order  of  said  court  and  the  amendment  of  the  said 
plaintiff's  declaration  therein;  that  annexed  hereto  is  a  copy  of  the  said 
plaintiff's  amended  declaration  in  this  cause;  and  that,  if  you  desire  to  de- 
fend the  same,  you  are  required  to  plead  to  said  declaration  within  fifteen 
days  after  service  of  this  summons  and  copy  of  said  amended  declaration 


§  34  Commencement  of  Actions  359 

upon  you.  Hereof  fail  not,  under  penalty  of  having  judgment  taken  against 
you  by  default.  The  plaintiff  claims  damages  not  exceeding  dol- 
lars.    Service  of  this  summons  shall  be  made  on  or  before  the   day 

of , ,  which  is  the  return  day  hereof. 

Witness,  Hon.   J.   S.,  circuit  judge,  and  the  seal  of  said  court,  at  the 
of ,  the  place  of  holding  said  court,  this day  of , 


J.  W., 

J.  K.,  Plaintiff 's  Attorney.  C^erk. 

Business  address :    ,  Mich. 

Form  of  Summons  for  Joint  Debtors  Residing  in  Different  Counties 

To  the  form  of  ordinary  summons,  add  the  following  immediately  before 
the  testing  clause: 
To  the  Sheriff  of  the  County  of : 

We  command  you  that  you  summon  the  defendant  (naming  him),  if  he 
may  be  found  within  your  bailiwick. 

§  33.  Time  for  issuance  and  return. 

A  summons  may  be  issued  in  vacation  or  term  time, 
and  may  be  made  returnable  at  any  time,  except  Sunday, 
not  exceeding  three  months  from  the  date  when  issued.^^ 

§  34.  Service. 

Writs  of  summons  are  served  by  the  sheriff  or  other 
officer  or  person  to  whom  they  are  delivered  by  show- 
ing the  original  writ  to  the  defendant  and  delivering  to 
him  a  copy  thereof.^'  On  the  return  of  the  writ  person- 
ally served,  the  defendant  is  considered  in  court  and  may 
be  proceeded  against  accordingly.^^ 

In  actions  of  ejectment,  if  the  premises  claimed  by 
the  plaintiff  are  actually  occupied,  the  process  must  be 
served  either  by  delivering  a  copy  thereof  to  the  de- 
fendant who  is  in  occupation  of  the  premises  personally 
or  by  leaving  such  copy  with  some  person  of  proper  age 

16  Cir.  Ct.  Rule  18;  .Tud.  Act,  ch.  Clerical  errors  and  omissions  in 
1.3,   §3;    Comp.  Laws  1915,   §12406.  its  original  or  copy  are  usually  not 

17  .Tud.  Act,  eh.  13,  §21;  Comp.  fatal.  Millard  v.  Lenawee  Circuit 
Laws  1915,  §12424.  Judge,    107   Mich.    134;    Merrick   v. 

ISJud.  Act,  ch.  13,  §21;  Comp.  Mayhue,  40  Mich.  196;  Lyon  v. 
Laws   1915,   §12424.  Baldwin,   194   Mich.   118. 


360  Commencement  of  Actions  §  34 

at  the  dwelling  of  the  defendant,  if  he  be  absent.^^  If 
the  defendant,  or  any  defendant,  is  not  in  occupation  of 
the  premises,  process  must  be  served  upon  such  defend- 
ant personally  if  he  can  be  found  anywhere  in  the  state. 
If  he  cannot  be  found,  the  same  proceedings  may  there- 
upon be  taken  as  in  chancery  cases  in  the  case  of  absent, 
concealed  or  non-resident  defendants.^" 

When  a  summons  is  delivered  to  any  sheriff,  under 
sheriff  or  deputy  to  serve,  it  is  the  duty  of  that  officer 
to  serve  it  with  all  convenient  speed  and  to  return  it  with 
his  certificate  indorsed  thereon  of  the  time  and  manner 
of  service,  either  to  the  office  of  the  clerk  of  the  court  in 
which  the  suit  is  pending  or  to  the  attorney  whose  name 
is  indorsed  on  the  writ.^^ 

§35.  Rules  governing  both  summons  and  capias  or  all 
process. 

Many  of  the  statutory  and  court  rules  apply  equally 
well  to  both  summons  and  capias  or  all  civil  process,  and 
hence  for  convenience  have  been  treated  in  the  preced- 
ing subdivision  of  this  article.^^  This  applies,  for  in- 
stance, to  who  may  serve  the  writ,  the  place  where  it  may 
be  served,  the  time  for  service,  the  person  who  may  be 
served,  the  return  as  to  service,  the  compelling  such  a 
return,  alias  and  pluries  writs,  etc. 

Form  of  Return  on  Summons  Personally  Served 
State  of  Michigan,   ) 

County  of   l 

I.  do  hereby  certify  and  return  that,  on  the day  of ,  A.  D. 

,  I  served  the  within  summons  on  the  within-named  C.  D.  personally, 

by   showing   it   to   him,   and   at   the   same   time   delivering   to   him    a   copy 

thereof,  at ,  in  said  county. 

Dated,  etc.  S.  T., 

Sheriff. 

19Jud.   Act,   ch.    29,    §13;    Comp.  21Jud.   Act,   ch.    1.3,    §38;    Comp. 

Laws  1915,  §  13180.   See  also  Eject-  Laws  1915,   §  12441.     As  to  return 

MENT.  of  service,  see  §§  23-27,  ante. 

20Jud.   Act,   ch.   29,   §14;    Comp.  22  See   §§3-30,  ante. 
Laws  1915,   §  13181. 


§  36  Commencement  of  Actions  361 

Form  of  Betaim  on  Summons  Served  on  One  Defendant,  Other 
Defendant  Not  Found 

State  of  Michigan, 
County  of   

I  hereby  certify  and  return  that,  on  the   day  of    ,  A.   D. 

,  I  served  the  within  summons  on  the  within-named  C.  D.  personally, 

by   showing   it  to   him,   and   at   the   same    time   delivering   to   him   a   copy 

thereof,  at    ,  in  said  county,  and,  after  diligent  search  and  inquiry, 

I  am  unable  to  find  the  within-named  E.  F.  in  my  bailiwick. 

Dated,  etc.  S.  T., 

Sheriff. 

Form  of  Return  on  Summons,  Defendant  Not  Found 

State  of  Michigan,  ) 
County  of   ( 

I   hereby   certify  and   return  that,   after   diligent  search   and   inquiry,   I 
am  unable  to  find  the  within-named  C.  D.  in  my  bailiwick. 
Dated,  etc.  S.  T., 

Sheriff. 

III.  By  Filing  and  Serving  Declaration 

§  36.  When  proper  and  time  of  service. 

Actions  brought  for  the  recoveiy  of  any  debt  or  for 
damages  only  and  actions  of  ejectment  may  be  com- 
menced not  only  by  summons,  but  also  by  filing  in  the 
office  of  the  clerk  of  the  court  a  declaration  upon  which 
is  indorsed  a  notice  in  substantially  the  form  fixed  by 
statute,  notifying  the  defendant  that  suit  has  been  com- 
menced and  that  he  is  required  to  plead  to  the  declara- 
tion within  fifteen  days  after  the  service  upon  him  of  a 
copy  of  the  declaration.^^  This  mode  of  commencing  an 
action  may  be  adopted  against  any  person,  whether  priv- 
ileged from  arrest  or  not.  It  was  formerly  the  only 
method  of  commencing  a  suit  in  ejectment.'^* 

The  filing  and  serving  of  the  declaration  is  in  the  na- 

23  Jud.    Act,    ch.    13,    §4;    Comp.  plead  to  the  declaration,  instead  of 

Laws   1915,   §  12407.  writing    it    on    the    back,    does    not 

This  includes  actions  against  cor-  vitiate   the   service.     In   re   Joseph, 

porations.      City    of    Menominee    v.  206  Mich.   659. 

Menominee  Circuit  Judge,  81  Mich.  34 How.    Stat.    (2nd    cd.)    13151; 

577.  Comp.  Laws  1915.  81317Q. 

Attachment  of  notice   of  rule   ♦" 


362  Commencement  of  Actions  §  36 

ture  of  process  to  bring  tlie  defendant  into  court,^®  al- 
though it  is  not  process  within  the  meaning  of  the  con- 
stitutional and  statutory  provisions  requiring  that  the 
style  of  all  process  shall  be  "In  the  Name  of  the  People 
of  the  State  of  Michigan,  "^s 

The  declaration  should  be  filed  before  service  of  the 
declaration  and  notice.^'  Service  of  the  declaration  be- 
fore filing  it  is  void,  the  suit  not  being  commenced  until 
the  declaration  is  filed.^^  But  a  failure  to  give  the  no- 
tice, while  constituting  a  ground  for  reversal  of  any  judg- 
ment that  may  be  rendered,  is  not  such  a  defect  as  to 
render  the  entire  proceedings  void  for  want  of  jurisdic- 
tion and  therefore  subject  to  collateral  attack.^^  An  ac- 
tion is  commenced  by  filing  of  the  declaration,  before 
service  therof.^®* 

In  suits  commenced  by  declaration  against  joint  de- 
fendants, the  notice  to  plead  must  run  against  alL^° 

Prior  to  the  Judicature  Act  a  rule  to  plead  was  re- 
quired to  be  filed  and  notice  thereof  given.®"* 

25  City   of   Menominee   v.   Menom-       v.  Manahan,  62  Mich.  143. 

inee   Circuit    Judge,    81    Mich.    577;  However,    the    copy    served    need 

Begole    V.    Stimson,    39    Mich.    298;  not  bear  an  indorsement  of  filing  by 

Ellis  V.  Fletcher,  40  Mich.  321.  the   clerk.     Michigan   Buggy   Co.   v. 

The  Judicature  Act  expressly  pro-  Smallegan,  138  Mich.  79. 

vides  that  whenever  the  word  "proe-  29  Griffin    v.    McGavin,   117    Mich, 

ess"  is  used  in  the  act  it  shall  be  372. 

deemed    to    include    declarations,   in  29a  Christe  v.  Springfield  F.  &  M. 

suits     commenced     by     declaration,  Ins.  Co.,  173  N.  W.  341. 

■wherever   applicable.     Jud.   Act,   ch.  30  Ralston  v.  Chapin,  49  Mich.  274. 

13,  §  20;  Comp.  Laws  1915,  §  12423.  30a  That     service    under    the    old 

26  Penfold  V.  Slyfield,  110  Mich.  practice  is  sufficient  even  since  the 
343.  enactment    of    the    Judicature    Act, 

27  Blanek  v.  Ingham  Circuit  see  Grocers  v.  Allegan  Circuit 
Judge,  44  Mich.  98;  Ellis  v.  Flet-  Judge,  175  N.  W.  454.  Service  of 
eher,  40  Mich.  321;  South  Bend  a  copy  of  the  rule  to  plead  instead 
Chilled  Plow  Co.  v.  Manahan,  62  of  a  notice  thereof  was  held  not 
Mioh.  143.  such  a   defect   in    the   service  as  to 

28  Ellis  V.  Fletcher,  40  Mich.  321 :  warrant  a  holding  that  default  was 
Wetherbee  v.  Kusterer,  41  Mich.  not  regularly  entered,  in  Kentucky 
359;    South   Bend  Chilled  Plow  Co.  Wagon     Mfg.     Co.     v.     Kalamazoo 


1 39  Commencement  of  Actions  363 

Form  of  Notice  to  Plead  to  Be  Indorsed  on  Declaration  by  Which  Suit 

Is  Commenced 
To  C.  D.,  Defendant: 

You  are  hereby  notified  that  a  suit  has  been  commenced  against  you  as 
defendant  by  A.  B.,  as  plaintiff,  and  that  the  within  is  a  true  copy  of 
plaintiff 's  declaration  in  said  cause,  and  that  if  you  desire  to  defend  the 
same,  you  are  required  to  plead  thereto  within  fifteen  days  after  service 
upon  you  of  a  copy  of  said  declaration. 
Dated,  etc. 

J.  K., 
Attorney  for  Plaintiff. 

§37.  Form  of  declaration. 

The  form  of  the  declaration  employed  as  commence- 
ment of  suit  is  in  general  the  same  as  it  would  be  if  the 
suit  were  commenced  by  capias  or  summons.  It  is  usual, 
however,  to  recite  in  the  commencement  of  the  declara- 
tion so  used  that  the  plaintiff  files  the  declaration  as 
commencement  of  suit. 

The  essential  parts  of  the  declaration  will  be  consid- 
ered and  explained  in  a  later  part  of  this  work,  and 
what  is  there  said  as  to  declarations  in  general  will  ap- 
ply equally  to  those  employed  as  commencement  of 
suits.^^ 

§  38.  Who  may  serve. 

The  service  of  the  declaration  used  as  commencement 
of  suit  may  be  made  by  the  sheriif,^^  under  sheriff  or  a 
deputy  sheriff,  or  by  a  private  person  of  suitable  age  and 
discretion,^^  or  even  by  the  plaintiff.^* 

§  39.  Proof  of  service. 

Proof  of  service  of  the  declaration  and  notice  to  plead 
is  made  in  the  same  way  as  in  case  of  otiier  civil  process.^^ 

County    Circuit    Judge,    175    N.    W.  §.18;   Comp.  Laws  1915,  §12441. 

150.  33Jud.    Act,    ch.    13,    §§22,    24 

81  See  Pleading.  Comp.  Laws  1915,  §§12425,  12427 

32  Norvell    v.    McHenry,    1    Mich.  Munn  v.  Haynes,  46  Mich.  140,  142 

227,  234.  Norvell  v.  McIIonry,  1  Mich.  234. 
As   to   service  by  a  coroner  when  84  Penf old    v.    Slyficld,    110   Mich. 

the  sheriff  is  a  party  or  is  interested  343. 

in    the    suit,   see    Jud.    Act,    ch.    13,  35  See   §8  23-30,  ante. 


364  Commencement  of  Actions  §  39 

Proof  of  service  may  be  made  either  by  certificate  of  the 
officer  or  by  affidavit,'^  and,  whethoj*  by  certificate  or 
by  affidavit,  may  be  indorsed  either  on  the  original 
dechiration  or  a  copy.*'  In  either  case,  the  proof  should 
show  that  the  provisions  of  the  statute  relative  to  the 
mode  of  service  have  been  complied  with.** 


Form  of  Return  of  Service  of  Declaration  Filed  as  Oommencement  of  Suit 

ss. 


ytate  of  Michigan,   ) 


County  of 

I   hereby   certify  and  return  that,  on  the    day   of    ,  A.  D. 

,  I   served  a  copy   of  the   declaration,  of   which  the  annexed   is  a 

copy,  and  notice  to  plead,  of  which  the  annexed  is  a  copy  (and  therewith 
a  copy  of  the  promissory  note  and  the  notice  relating  thereto,  or  as  the 
cnse  may  be,  a  copy  of  which  is  hereto  annexed),  personally  upon  C.  D., 
the  defendant  named  in  said  declaration,  by  delivering  the  same  to  him 
at ,  in  said  county. 

Dated,  etc. 

S.  T., 
Sheriff. 

§  40.  Rules  ccmmon  to  all  original  process  as  applicable. 

The  rules  hereinbefore  stated  as  to  place  of  service  of 
process,**  the  person  to  be  served,*"  the  mode  of  com- 
pelling a  return,**  etc.,  apply  equally  well  to  service  of 
the  declaration  as  a  means  of  commencing  an  action. 

IV.  By  Capias 

§  41.  Capias  as  original  writ. 

Under  the  theory  and  practice  of  the  common  law,  the 
capias  ad  respondendum  was  a  judicial  writ,  based  upon, 
and  subsequent  to,  the  so  called  original  writ  by  which 
the  suit  was  commenced.*^     Under  the  statute  of  this 

36  Arnold   v.   Nye,   23   Mich.   296.  and  why.     Campbell  v.  Wayne  Cir- 

87  Lamed  v.  Wilcox,  4  Mich.  333.  cuit  Judge,  111  Mich.  247. 

SSNorvell    v.    McHenry,    1    Mich.  39  See    §§20,  21,  ante. 

2U.  "See   §§11,  18,  ante. 

If  there  is  more  than  one  defend-  *1  See    §  27,   ante, 

ant,    proof    of    service    must    show  42  Clark    v.    Kent    Circuit    Judge, 

service    on    each    of    defendants    or  125  Mich.  449;  3  Cooley 's  Bl.  Comm. 

show  which  of  them  were  not  served  282. 


§  42  Commencement  of  Actions  365 

state,  the  capias  ad  respondendum  is  denominated  an 
original  writ." 

§  42.  Actions  which  may  be  commenced  by  capias 

Actions  on  contracts. 

By  statute,  personal  actions  arising  upon  contract,  ex- 
press or  implied,  may  be  commenced  by  capias  ad  re- 
spondendum, only  where  (1)  to  recover  damages  for 
breach  of  promise  to  many  where  fraud  is  alleged,  or  (2) 
for  moneys  collected  by  any  public  officer,  or  (3)  for  any 
misconduct  or  neglect  in  office  or  in  any  professional  em- 
ployment, or  (4)  in  case  of  fraud  or  breach  of  trust;  and 
the  plaintiff  must  file  a  declaration  supported  by  the  affi- 
davit of  himself  or  of  some  other  person  having  knowl- 
edge of  the  facts,  stating  that  the  plaintiff  has  a  claim  for 
damages  against  the  defendant  for  the  cause  of  action 
stated  in  such  declaration,  upon  which  he  believes  that 
the  plaintiff  is  entitled  to  recover  a  certain  sum,  being 
more  than  one  hundred  dollars.  ** 

In  considering  the  cases  in  which  a  plaintiff  may  com- 
mence his  suit  by  a  capias  ad  respondendum,  that  con- 
stitutional provision  should  be  ever  in  mind  which  modi- 
fies the  common  law  rule  on  the  subject  of  civil  imprison- 
ment and  forbids  that  any  person  be  imprisoned  for  debt 
arising  out  of  or  founded  on  a  contract,  express  or  im- 
plied, except  in  cases  of  fraud  or  breach  of  trust  or  of 
moneys  collected  by  public  officers  or  in  any  professional 
employment.*^  The  cases  in  which  arrests  can  now  be 
made  are  therefore  peculiar  and  exceptional.    The  right 

43Jud.    Act,    ch.    13,    §3;    Comp.  of    the    states,    the    usual    mode    of 

Laws  1915,  §  12406.  commencing    actions     in    courts    of 

In  early   times   a  writ  of  capias  record,  the  summons  being  only  used 

was   not   an   original   writ   but   was  in  commencing  suits  against  corpo- 

issued  to  insure  an  appearance  only  rations. 

after   an    original   writ   had   proved  44Jud.   Act,   ch.   13,   Sll;    Comp. 

ineffective.     The  proceeding  by  this  Laws  1915,  §  12414. 

writ   is  borrowed   from   the   PJnglish  «  Const.  Art.  II,  sec.  20. 
practice,  and  was  formerly,  in  most 


366  Commencement  of  Actions  §  42 

to  imprison  does  not  depend  at  all  upon  the  mere  fact  of 
indebtedness,  but  upon  other  facts.*^ 

A  cause  of  action  based  simply  upon  a  breach  of  prom- 
ise to  marry,  in  the  absence  of  any  charge  involving 
fraud,  is  within  the  constitutional  inhibition  referred  to.*'' 
But  where  the  affidavit  for  the  writ  avers  the  promise  to 
marry  and  that,  by  means  thereof,  the  defendant  suc- 
ceeded in  seducing  the  plaintiff,  the  case  is  to  be  regarded 
as  one  of  fraud  for  which  a  capias  is  an  appropriate 
writ." 

An  action  against  an  agent,  not  being  an  attorney  at 
law,  based  upon  his  failure  to  pay  over  moneys  collected, 
cannot  be  commenced  by  capias  ad  respondendum  upon 
the  ground  that  such  failure  constitutes  "misconduct  or 
neglect  in  office  or  in  any  professional  employment. ' '  ** 
A  private  agency  is  neither  office  nor  professional  em- 
ployment. Professional  employment  can  relate  only  to 
some  of  those  occupations  universally  classed  as  profes- 
sions, the  general  duties  and  character  of  which  courts 
must  be  expected  to  understand  judicially.^"  Services  of 
an  attorney  are  not  necessarily  "professional"  services, 
although  such  term  is  not  limited  to  litigation.^^ 

§  43.  Actions  for  torts. 

Personal  actions  may  be  commenced  in  like  manner  by 
capias  ad  respondendum  in  cases  of  claims  for  damages 
other  than  those  arising  upon  contract  express  or  implied, 
where  an  order  for  bail  shall  be  indorsed  on  the  writ  by 
a  judge  of  the  court  from  which  the  writ  issues  or  by  a 
circuit  court  commissioner,  directing  the  amount  in  which 

46  Josselyn  v.  McAllister,  22  Midi.  153;  In  re  Stephenson,  32  Mich.  60. 
300;  In  re  Stephenson,  32  Mich.  60.  BO  Pennock    v.    Fuller,    41    Mioh. 

47  In  re  Tyson,  32   Mich.   262.  153,  where  the  employment  was  that 

48  In   re    Sheahan,    25   Mich.    145.  of  a  real  estate  agent. 

48  Bronson   v.   Newberry,   2  Doug.  61  Case  v.  Eanney,  174  Mich.  673, 

38;   People  v.   McAllister,   19   Mich.       682. 
215;    Pennock    v.    Fuller,   41    Mich. 


§  45  Commencement  of  Actions  367 

bail  is  to  be  taken.*^  Such  order  can  be  made  only  upon 
the  presentation  of  a  declaration  supported  by  the  affi- 
davit of  the  plaintiff  or  of  some  other  person  having 
knowledge  of  the  facts,  which  declaration,  with  such 
affidavit,  must  be  filed,  and  copies  thereof  served  with  the 
writ." 

§  44.  Privilege  from  arrest. 

There  are  some  persons  who,  by  reason  of  their  pecul- 
iar office  or  condition,  are  by  law  exempt  or  privileged 
from  arrest  upon  civil  process.  For  instance,  the  con- 
stitution of  the  state  provides  that  senators  and  repre- 
sentatives in  the  state  legislature  shall  not  be  subject  to 
any  civil  process  during  the  session  of  the  legislature  or 
for  fifteen  days  next  before  the  commencement  and  after 
the  termination  of  each  session.^*  And  a  statute  pro- 
vides that  no  officer  of  the  senate  or  house  of  representa- 
tives, while  in  actual  attendance  upon  the  duties  of  his 
office,  shall  be  liable  to  arrest  upon  civil  process.^® 

§  45.  Witnesses,  parties  and  attorneys. 

Any  person  duly  and  in  good  faith  subpoenaed  as  a 
witness  in  any  suit  or  proceeding,  every  party  thereto  and 
any  attorney  engaged  therein  are  exonerated  from  ar- 
rest in  any  civil  suit,  while  going  to  the  place  where  he 
is  required  to  attend,  while  in  attendance,  and  while  re- 
turning therefrom. ^^  This  statute,  it  has  been  held,  ap- 
plies to  all  proceedings  judicial  in  nature  without  regard 

52  Jud.   Act,  ch.   13,   §  12 ;    Comp.  54  Const.  Art.  V,  sec.  8. 

Laws  1915,  §12415.  65  Jud.  Act,  ch.   13,   §40;    Comp. 

Capias  is   proper   where    there   is  Laws  1915,  §  12443. 

an    unlawful    conversion.      Clark    v.  56  Jud.   Act,   ch.    13,    §43;    Comp. 

Kent  Circuit  Judge,  125  Mich.  449.  Laws  1915,   §  12446. 

Claim    "for   damages"   has   been  Attorney    arrested    before    actual 

held  not   to   include   action    for   re-  sitting  of  court,  under  old  statute, 

plevin.     Fuller  v.  Bowker,  11  Mich.  see    Hughes    v.    Halley,    137    Mich. 

204.  433. 

53  Jud.   Act,  ch.   13,    §13;    Comp. 
Laws  1915,  §  12416. 


368  Commencement  of  Actions  §  45 

to  whether  taking  place  in  court,"  but  does  not  protect 
a  party  while  going  from  his  residence  to  consult  coun- 
sel.*** 

§  46.  Officers  of  court. 

All  officers  of  the  several  courts  of  record  of  this  state, 
other  than  attorneys  and  counselors,  are  liable  to  arrest 
and  may  be  held  to  bail  in  the  same  manner  as  other  per- 
sons, except  while  in  attendance  upon  an  actual  sitting 
of  the  court  of  which  they  are  officers  or  while  going  to 
or  returning  from  such  sitting.*® 

§  47.  Prisoners. 

A  prisoner  brought  from  another  state  on  a  criminal 
charge  is  exempt  from  arrest  on  a  (Capias  until  after  a 
reasonable  opportunity  for  his  return.^'' 

§48.  Electors. 

By  the  state  constitution,  every  elector,  in  all  cases 
except  for  treason,  felony  or  breach  of  the  peace,  is  priv- 
ileged from  arrest  during  his  attendance  at  elections  and 
in  going  to  and  returning  from  them.®^  And,  by  statute, 
no  process  in  any  civil  suit  can  be  served  on  any  elector 
entitled  to  vote  at  any  election  during  the  day  on  which 
the  election  is  held.^* 

§  49.  Persons  in  military  service. 

All  officers  and  enlisted  men  who  may  be  in  the  actual 
service  of  this  state  or  of  the  United  States  are  privileged 
from  arrest  and  imprisonment  upon  civil  process  during 

W  People    V.    Judge    of    Superior  60  Weale  v.  Clinton  Circuit  Judge, 

Court,  40  Mich.  729.  158  Mich.  563. 

68  Monroe    v.     St.     Clair     Circuit  61  Const.  Art.  Ill,  see.  5. 

Judge,  125  Mich.   283.  68  Jud.   Act,   ch.    13,    §25;    Comp. 

BSJud.    Act,   ch.    13,   §43;    Comp.  Laws  1915,   §12428. 
Laws  1915,  §  12446. 


§  53  Commencement  of  Actions  369 

the  time  of  such  actual  service  and  for  six  months  after 
such  service  has  ceased.^^ 

§  50.  Senators  and  congressmen. 

The  senators  and  representatives  in  the  congress  of  the 
United  States  are  in  all  cases,  except  treason,  felony  and 
breach  of  the  peace,  privileged  from  arrest  during  their 
attendance  at  the  session  of  their  respective  houses,  and 
in  going  to  and  returning  from  the  same.^* 

§51.  Women. 

It  is  the  settled  policy  of  this  state  to  exempt  women 
from  arrest  upon  civil  process.  It  has  long  been  the  rule 
that  all  acts  giving  the  right  generally  to  commence  suits 
by  capias  or  othei^vise  to  imprison  a  defendant  must  be 
understood  to  have  been  enacted  with  reference  to  this 
policy,  and,  by  implication,  as  intended  to  be  subject  to 
this  exception,  unless  expressly  or  by  necessaiy  implica- 
tion otherwise  provided,^*  And  now  it  is  expressly  pro- 
vided by  statute  that  no  female  shall  be  imprisoned  on 
any  process  in  any  civil  action.^^ 

§  52.  Second  arrest. 

After  the  arrest  and  discharge  of  a  defendant,  he  is  not 
exempt  from  arrest  for  the  same  cause  of  action,  where 
the  second  attempted  arrest  is  not  made  maliciously  nor 
with  a  view  to  harass  defendant." 

§  53.  Statutory  liability  for  arrest  of  party,  attorney 

or  witness. 
Every  arrest  made  contrary  to  the  foregoing  exemp- 
tions of  parties,  attorneys  and  witnesses  is  absolutely 

63  How.  Stat.  (2n(]  ed.)  1640;  proceedings  for  C'ontenii»t  of  court, 
Comp.  Laws  1915,  §  928.  as  these   are  regarded  as  not  civil, 

64  Const.  U.  S.  Art.  I,  sec.  6.  but    criminal.      Carnahan    v.    Carna- 

65  People  V.  Bartow,  27  Mich.  68.       han,     14."?     Mich.     .'{90;     Schwab     v. 
66Jud.   Act,  ch.    1.-?,    §42;    Comp.       Coots,  44  Mich.  463. 

Laws  1915,   §12445.  67  Breckon      v.      Ottawa      Circuit 

Females    may    be    imprisoned    in       Judge,  109  Mich.  615. 
1  Abbott— 24 


370  Commencement  of  Actions  §  53 

void  and  is  a  contempt  of  the  court  issuing  the  subpoena. 
Every  person  making  or  procuring  such  an  arrest  is  re- 
sponsible to  the  witness  aiTested  in  double  the  amount  of 
damages  found  by  the  jury,  and  also  to  an  action  at  the 
suit  of  any  injured  party  for  the  loss,  hindrance  and 
damage  sustained  by  him  in  consequence  of  the  arrest.^' 
But  no  sheriff  or  other  officer  or  person  is  so  liable,  unless 
the  person  claiming  an  exemption  from  arrest  shall,  if  re- 
quired by  such  sheriff  or  officer,  make  an  affidavit  stating 
either  (1)  that  he  has  been  legally  subpoenaed  as  a  wit- 
ness to  attend  before  some  court,  officer,  auditors,  ref- 
erees, commissioners  or  notary  public,  specifying  such 
court,  officer,  auditors,  referees,  commissioners  or  notary 
public,  the  place  of  attendance  and  the  cause  in  which  he 
has  been  subpoenaed,  and  that  he  has  not  been  sub- 
poenaed by  his  own  procurement  with  intent  to  avoid  the 
service  of  any  process,  or  (2)  that  he  is  an  attorney  in  or 
party  to  a  suit  the  trial  of  which  is  then  pending,  that 
he  is  going  to,  or  is  in  actual  attendance  upon,  or  is  re- 
turning from,  the  court  in  which  such  trial  is  then  pend- 
ing, and  that  his  attendance  upon  such  court  is  necessary 
to  the  trial  of  such  cause;  or  (3)  that  he  is  an  officer  of  a 
court  of  record  actually  and  in  good  faith  going  to,  at- 
tending upon,  or  returning  from,  an  actual  sitting  of  the 
court  of  which  he  is  such  officer. ^^ 

§  54.  Declaraticn  and  affidavit In  actions  ex  con- 
tractu. 

The  affidavit  in  support  of  the  declaration  which  must 
be  filed  in  order  to  obtain  a  writ  of  capias  ad  responden- 
dum may  be  made  either  by  the  plaintiff  or  by  some  other 
person  in  his  behalf.''"  In  actions  arising  upon  contract, 
the  affidavit  should  state  tliat  the  plaintiff  has  a  claim 

68Jud.   Act,   ch.   13,    §44;    Camp.  70  Jud.    Act,    ch.    13,    §§11,    13; 

Laws  1915,  §  12447.  Comp.   Laws   1915,   §§  12414,   12416. 

69  .Jud.    Act,   eh.    13,    §45;    Comp. 
Laws  1915,  §  12448. 


1 55  Commencement  of  Actions  371 

for  damages  against  the  defendant  for  the  cause  of  action 
stated  in  such  declaration  and  upon  which  the  affiant  be- 
lieves that  the  plaintiff  is  entitled  to  recover  a  certain 
sum,  being  more  than  one  hundred  dollars.'''^  And  inas- 
much as  not  all  actions  arising  upon  contract  may  be  com- 
menced by  a  capias,  but  only  certain  enumerated  classes 
of  them,  the  declaration  and  affidavit  must  show  that  the 
action  proposed  to  be  commenced  belongs  to  one  of  the 
enumerated  classes. ''^ 

Form  of  Declaration  and  Supporting  Affidavit  to  Be  Filed  on  Commence- 
ment of  an  Action  on  Contract  by  Capias  ad  Respondendum 

State  of  Michigan,   ) 
County  of    ( 

Comes  now  A.  B.  and  says  that  he  has  a  claim  for  damages  against 
C.  D.  for  the  cause  of  action  hereinafter  stated,  upon  which  he  is  about 
to  commence  a  suit  against  the  said  C.  D.  by  writ  of  capias  ad  responden- 
dum, issued  out  of  the  circuit  court  for  said  county,  and  upon  which  he 

believes  he  is  entitled  to  recover  the  sum  of dollars  (some  amount 

more  than  one  hundred  dollars),  and  that  the  facts  and  circumstances  upon 
which  his  said  claim  for  damages  is  founded,  and  which  constitute  his  said 
cause  of  action,  are  as  follows:  (Here  state  fully  and  positively  the 
facts  and  circumstances.) 

A.   B. 

State  of  Michigan,  | 
County  of   ( 

A.  B.,  being  duly  sworn,  deposes  and  says  that  he  has  read  (or  has  heard 
read)  the  foregoing  declaration,  by  him  subscribed,  and  knows  the  con- 
tents thereof,  and  that  the  same  is  true  of  his  own  knowledge,  except  as  to 
those  matters  which  are  therein  stated  on  belief,  and  as  to  those  matters 
he  believes  it  to  be  true. 

A.  B. 

Subscribed,  etc. 

§  55.  In  actions  ex  delicto. 

The  declaration  and  affidavit  required  in  cases  of  claims 
for   damages   other   than   those    arising   upon    contract 

71Jud.  Act,  ch.  13,  §11;  Comp.  215;  Bronson  v.  Newberry,  2  Doug. 
Laws   1915,   §  12414.  38;  Pennock  v.  Fuller,  41  Mich.  153. 

72  People  V.  McAllister,  19   Mich. 


372  Commencement  of  Actions  §  55 

should  show  the  nature  of  the  plaintiff's  claim.''  And 
this  the  affidavit  should  do  in  detail  and  with  certainty, 
setting  forth  not  merely  the  conclusions  of  the  affiant,  but 
rather  all  the  facts  and  circumstances  of  the  case,  so  that 
the  court  may  draw  its  own  conclusions;  for  a  person  may 
think  he  has  good  reason  to  believe  that  he  has  a  cause 
of  action  against  another,  when,  if  the  facts  were  fully  set 
forth,  it  might  appear  otherwise.'^*  The  affidavit  need  not, 
as  in  case  of  actions  on  contracts,  state  a  belief  that  plain- 
tiff is  entitled  to  recover  over  one  hundred  dollars. ''^^ 

An  affidavit  for  a  capias  which  shows  a  clear  case  of 
fraudulent  conversion  of  the  property  of  the  plaintiff  has 
been  held  sufficient.''^®  So,  also,  an  affidavit  which  shows 
that  the  defendant  had  bought  goods  without  intending 
to  pay  for  them,  knowing  himself  to  be  insolvent  at  the 
time  or  fraudulently  intending  to  give  his  affairs  the  ap- 
pearance of  insolvency.'''     Allegations  as  to  fraud,  al- 

73  Jud.  Act,  eh.  13,  S13;  Comp.|Ktrespass  on  the  case  for  false  rep- 
Laws  1915,   §  12416.  |»rcscntations,     Hatch     v.     Saunders, 

74Soule  V.  Ottawa  Circuit  Judge,  .,^66   Mich.    181;    alienation    of   affec- 
175  Mich.  127;   H.  J.  Cheney  Co.  v.  "?  tions  of  wife,  Conrad  v.  Van  Buren 
Allgeo,     165     Mich.     384;     Ord     v.       Circuit  Judge,  144  Mich.  492. 
Wayne    Circuit    Judge,    160    Mich.  Sufficiency   of  affidavit  in  slander 

569;  People  v.  Wayne  Circuit  Judge,       case,  see  Martin  v.  Saginaw  Circuit 
36   Mich.   334;    Sheridan   v.   Briggs,       Judge,  173  Mich.  22. 
53    Mich.    569;    Maxwell    v.    Deens,  If  a  prima  facie  case  of  trover  is 

46  Mich.  35;  In  re  Stephenson,  32  made  out  by  the  affidavit,  a  capias 
Mich.  60;  People  v.  McAllister,  19  will  issue.  Timm  v.  Cass  Circuit 
Mich.  215;  Fish  v.  Barbour,  43  Judge,  192  Mich.  508.  See  also  H. 
Mich.  19;  Shaw  v.  Ashford,  110  J.  Cheney  Co.  v.  Allgeo,  165  Mich. 
Mich.  534.  384. 

Affidavit    is    sufficient    if    allega-  76  Benie  v.  Wayne  Circuit  Judge, 

tions  therein  would   be  sufficient  to       154  Mich.  590. 

make  out  a  prima   facie  case   in  a  76  Wilcox     v.     Ismon,     34     Mich, 

criminal  trial.  Pease  v.  Pendell,  57  268;  Timm  v.  Cass  Circuit  Judge, 
Mich.   315.  192  Mich.  508. 

Form     in     action     for     malicious  77  People    v.     Watson,    40     Mich, 

prosecution,  see  Paulus  v.   Grobben,       729.      See    also   Hatch    v.   Saunders, 
104    Mich.    42;    trespass    on    lands,       66  Mich.  181. 
Shaw    V.    Ashford,    110    Mich.    534: 


§  56  Commencement  of  Actions  373 

though  sufficient  in  a  pleading,  may  be  insufficient  in  an 
affidavit.'''^ 

Form  of  Affidavit  In  Actions  ex  Delicto 

(No  title.) 

State  of  Michigan, 

County  of   

A.  B.,  being  duly  sworn,  deposes  and  says  that  he  is  the  plaintiff  named 

in  the  annexed  writ,  and  that  on   or  about  the    day  of    ,  at 

,  in  the  county  of   ,  in  the  state  of  Michigan,  C.  D.,  late  of 

,  came  into  the  dwelling  house  of  this  deponent,  where  he,  this  de- 
ponent then  was,  and,  without  any  provocation  whatever,  laid  hold  of  this 
deponent,  and  with  great  force  and  violence  knocked  him  down,  and  with 
his  fists  struck  this  deponent  several  violent  blows  upon  his  head,  face, 
arms  and  neck,  and  thereby  inflicted  upon  this  deponent  several  severe 
wounds  and  bruises,  by  reason  whereof  this  deponent  became  sick,  and 
was  disabled  from  attending  to  his  affairs  and  business  for  a  long  space 
of  time  to-wit:  for  about  the  space  of  five  weeks  then  next  ensuing,  and 
suffered  great  pain  and  incurred  a  large  amount  of  expense  in  nursing 
and  medical  aid  and  assistance. 

Subscribed,  etc.  (Signature.) 

§  56.  Necessity  for  statements  based  on  personal 

knowledge. 

The  constitution  of  the  state  prohibits  the  issue  of  any 
warrant  to  seize  any  person  without  probable  cause,  sup- 
ported by  oath  or  affirmation.'''^  And,  accordingly,  it  is 
not  sufficient,  in  an  affidavit  for  a  capias,  to  allege  the 
facts  and  circumstances  of  the  case  upon  information  and 
belief  merely.  On  the  other  hand,  it  is  necessary  that  the 
facts  should  be  stated  positively  and  within  the  personal 
knowledge  of  the  deponent. ®° 

78  Sheridan  v.  Briggs,  .'j.S  Mich.  Briggs,  53  Mich.  569;  Martin  v. 
569.  Saginaw    Circuit    Judge,    173    Mich. 

Whether  the   declaration  states  a  22;     Shaw    v.    Ashford,    110    Mich, 

good  cause  of  action  to  recover  dam-  534;  Soule  v.  Ottawa  Circuit  Judge, 

ages  for  fraud,  so  as  to  support  a  175  Mich.  127;  Proctor  v.  Prout,  17 

capias,    see    Merlan    v.    Kalamazoo  Mich.    473;    People    v.    Wayne    Cir- 

Circuit   Judge,   180  Mich.  393.  cuit   Judge,  36   Mich.   334;   DeLong 

79  Const.   Art.  IT,  sec.   10.  v.  Briggs,  47  Mich.  624;   Meddaugh 

80  Robinson  v.  Branch  Circuit  v.  Williams,  48  Mich.  172;  Moyle 
Judge,    142    Mich.    70;    Slieridan    v.  v.      Houghton      (circuit     Judge,     97 


374  COMMEXCEMENT    OF    AcTIOXS  §  56 

The  affiant  must  state  that  he  has  personal  knowledge 
of  the  facts  stated  in  the  affidavit  or  that  fact  must  be 
made  to  appear  by  what  is  stated  in  the  affidavit.  It  is 
not  essential  that  the  affidavit  contain  the  express  state- 
ment that  the  affiant  has  personal  knowledge  of  the  facts 
alleged,  but  it  is  essential  that  it  appear  either  by  express 
statement  or  by  the  very  nature  of  the  facts  and  circum- 
stances that  the  affiant  had  personal  knowledge  of  the 
facts.^^  The  correct  rule,  as  stated  by  Judge  Stone,  is 
that  ''where  the  fact  stated  in  the  affidavit  is  one  about 
which  the  testimony  of  any  person  having  means  of 
knowledge  would  be  admissible,  the  affidavit  need  not  set 
forth  the  source  and  extent  of  affiant 's  knowledge,  where 
the  affidavit  contains  the  averment  that  he  had  personal 
knowledge  of  the  facts  and  circumstances  set  forth  in  the 
affidavit.  "82 

The  statute  does  not  require  the  plaintiff  to  attach 
documentary  evidence  of  facts  within  his  own  jDcrsonal 
knowledge,^^  but  when  the  fact  of  the  existence  of  a  judg- 

Mich.   636;    Northrop  v.   Stone,   128  Briggs,   47   Mich.    624;    Stensrud   v. 

Mich.    415;    Conrad    v.    Van    Buren  Delamater,    56    Mich.    144;    Marble 

Circuit  Judge,   144  Mich.  492.     See  v.    Curran,   63   Mich.   283;    Shaw   v. 

also    Ord   v.    Wayne    Circuit   Judge,  Ashford,  110  Mich.  534;   Wright  v. 

160  Mich,   569.  Wayne    Circuit    Judge,    119    Mich. 

Must    contain    allegations    as    to  499;    Rice    v.    Knappen,    176    Mich, 

•which    affiant    could    testify    to    on  322. 

the  trial.      Church   v.    Calhoun   Cir-  The   statements  must  be   on  per- 

cuit  Judge,  129  Mich.  126.  sonal  knowledge  and  hence  the  affi- 

Affiant  should  show  the  source  of  davit  should  be  quashed  where  ma- 

hia   knowledge   and   attach  the   affi-  terial   statements  therein  could   not 

davit    of    the    person    who    has    the  have     been     within     the     personal 

requisite    knowledge.       Gardiner    v.  knowledge    of   the   affiant.      Eice    v. 

Wayne  Circuit  Judge,  155  Mich.  414.  Kalamazoo  Circuit  Judge,  176  Mich. 

Sufficiency    of   affidavit    in   action  322. 

for     alienation     of     affections,     see  82  Pratt  v.  Allegan  Circuit  Judge, 

Conrad  v.  Van  Buren  Circuit  Judge,  177   Mich.    558,   564,   applying  rule 

144  Mich.  492.  to   allegations   as   to    value   of   real 

81  Conrad    v.    Van    Buren    Circuit  estate. 

Judge,  144  Mich.  492,  497;   Proctor  83  Paulus    v.    Grobben,    104   Mich, 

v.    Prout,   17   Mich.   473;    Brown   v.  42;   Fruitport  Tp.  v.  Dickerman,  90 

Kelley,    20   ^ich.    27;    DeLong    v.  Mich.  20. 


§  58  Commencement  of  Actions  375 

ment  is  necessary  to  be  set  out,  the  jiidgmoiit  should  be 
identified  by  a  sufficient  description,  and  for  this  purpose, 
the  date  of  the  judgment  is  a  necessary  part.®* 

The  affidavit  in  an  action  for  fraud  is  sufficient  al- 
though the  falsity  of  some  of  the  representations  is  not 
stated  as  within  the  personal  knowledge  of  the  affiant 
where  many  of  them  are  shown  to  be  within  his  personal 
knowledge  and  the  falsity  of  sufficient  of  them  is  so  made 
to  appear  to  authorize  the  issuance  of  the  writ.®^ 

§  57.  Title,  date  and  filing. 

It  is  not  necessary  that  the  declaration  and  affidavit 
should  be  entitled  in  the  cause,  for  no  cause  is  pending 
when  they  are  made.®^ 

The  affidavit  should  be  dated  although  it  need  not  bear 
the  same  date  as  the  writ.®'''  It  need  not  be  filed  with  the 
clerk  before  the  writ  is  issued.®® 

§  58.  Dsfects  and  how  taken  advantage  of. 

An  action  begun  by  capias  should  not  be  dismissed  for 
insufficiency  of  the  affidavit  but  plaintiff  sliould  be  al- 
lowed to  proceed  on  the  summons  clause  of  the  writ.®® 

To  determine  the  sufficiency  of  the  affidavit,  the  com- 
mon practice  is  to  move  to  quash  the  writ  or  to  discharge 
defendant  from  arrest.®"  So  in  actions  of  tort  it  is  proper 
to  move  to  vacate  the  order  holding  to  bail.  And  where 
defendant  is  in  custody  under  the  writ,  habeas  corpus 
proceedings  lie  to  determine  the  sufficiency  of  the  affi- 
davit. Defendant  cannot  first  question  the  sufficiency  of 
the  affidavit  on  writ  of  error  after  a  trial  on  the  merits  in 
the  lower  court.®^    A  general  appearance  w^^ives  defects 

84  Badger  v.  Reade,  39  Mich.  771.  88  People   v.  Gebliardt,    154   Mich. 

85  Muir   V.   Wayne   Circuit   Judge,       504. 

151  Mich.  117.  89  H.  J.  Cheney  Co.  v.  Allgeo,  165 

86  Hatch    V.    Saunders,    66    Mich.  Mich.   384. 
181.  90  See  jmst. 

87  Clark  v.  Kent  Circuit  Judge,  91  Wiest  v.  Luycudyk,  73  Mich. 
125  Mich.  449.  661. 


376  Commencement  of  Actions  §  58 

in  the  affidavit.'^  But  putting  in  special  bail  and  plead- 
ing in  the  cause  does  not  waive  the  right  to  seek  a  dis- 
charge from  arrest  where  the  affidavit  is  jurisdictionally 
defective.^^  Where  the  sureties  on  the  bail  bond  are 
sued,  they  may  set  up  the  insufficiency  of  the  affidavit,'* 
as  may  the  sheriff  when  he  is  sued  for  an  escape.  Actions 
for  false  imprisonment  are  sometimes  based  upon  defec- 
tive affidavits  for  a  capias.®^  But  arrest  under  a  writ  of 
capias  ad  respondendum  in  a  tort  action  is  not  ground 
for  an  action  for  false  imprisonment  even  though  the  affi- 
davit for  the  capias  was  insufficient,  since  the  order  of  the 
judge  allowing  the  capias  is  not  void  but  voidable  in  such 
a  case.^^ 

The  affidavit  of  the  relator  in  mandamus  may,  it  seems, 
cure  defects  in  the  affidavit  for  a  capias,  by  an  admission 
of  their  truth.®"' 

Error,  if  any,  in  denying  a  motion  to  quash  a  capias 
should  be  raised  by  habeas  corpus  or  mandamus  before 
pleading,  and  is  not  subject  to  review  on  writ  of  error 
after  final  judgment.®^ 

§  59.  Issuance  and  form  of  v/rit. 

A  capias  ad  respondendum  may  be  issued  in  vacation 
or  in  term  time,  and  may  be  made  returnable  at  any  time, 
except  Sunday,  not  exceeding  three  months  from  the  date 
when  issued.'^  In  form,  it  notifies  the  defendant  to  ap- 
pear, in  person  or  by  attorney,  within  fifteen  days  after 
service  of  the  writ  ujoon  him,  to  answer  to  the  suit  of  the 

92  Graham   v.   Cass  Circuit  Judge,  96  Thomas      v.      Kosecrantz,      193 

108  Mich.  425.  Mich.  357,   following  Ward   v.   Coz- 

98  In  re  Steplienson,  32  Mich.  60.  zens,  3  Mich.  252. 

94  See  Fish  v.  Barbour,  43  Mich.  97  See  Martin  v.  Saginaw  Circuit 
19.  Judge,    173    Mich.    22;    Robinson   v. 

95  Ward  V.  Cozzens,  3  Mich.  252;  Branch  Circuit  Judge,  142  Mich.  70. 
Johnson    v.    Morton,    94    Mich.    1 ;  98  Baxter  v.  Woodward,  191  Mich. 
Wachsmuth      v.      Merchants'      Nat.  379,   383,   and  cases  cited;    Eeed   v. 
Bank,    96    Mich.    426;     Thomas    v.  McCready,  170  Mich.  532,  538. 
Kosecrantz,  193  Mich.  357.  99  Cir.  Ct.  Rule  18,  §  1. 


§  59  Commencement  of  Actions  377 

plaintiff  according  to  the  rules  and  practice  of  the  court,^ 
and  commands  the  sheriff  to  take  the  defendant,  if  he  may 
be  foimd  within  his  bailiwick,  and  keep  him  in  his  cus- 
tody until  he  shall  be  discharged  according  to  law.^ 

It  should  be  entitled  in  the  court  from  which  it  issues, 
should  run,  **In  the  Name  of  the  People  of  the  State  of 
Michigan,"  should  be  tested  in  the  name  of  one  of  the 
judges  of  the  court,  be  sealed  with  the  seal  of  the  court, 
be  signed  by  the  clerk  thereof  and,  before  the  delivery 
of  it  to  any  officer  to  be  executed,  should  be  subscribed  or 
indorsed  with  the  name  of  the  attorney  for  the  plaintiff 
and  the  officer  by  whom  it  is  issued.^  The  attorney,  when 
subscribing  or  indorsing  the  writ,  should  add  his  busi- 
ness address  for  the  information  and  use  of  the  adverse 
party  or  his  attorney  in  making  service  of  papers  in  the 
subsequent  progress  of  the  suit.'* 

The  amount  expressed  should  be  large  enough  to  cover 
all  probable  damages,  and  is  usually,  in  actions  of  as- 
sumpsit, a  sum  equal  to  twice  the  plaintiff's  demand.  The 
writ  is  not  void  because  the  time  stated  therein  for  enter- 
ing an  appearance  is  shorter  than  the  time  fixed  by  stat- 
ute.^ So  the  fact  that  the  writ  is  dated  the  day  before  the 
affidavit  is  made  does  not  render  it  void.^ 

Form  of  Writ 

State  of  Michigan. 

The  Circuit  Court  for  the  County  of 

In  the  Name  of  the  People  of  the  State  of  Michigan. 

To   : 

You  are  hereby  notified  that  a  suit  has  been  commenced  against  you  in 

the  circuit  court  for  the  county  of   ....   by    ,  as  plaintiff,  and  that, 

if  you  desire  to  defend  the  same,  you  are  required  to  have  your  appearance 

ICir.   Ct.   Eule    18,   SI.  before  the   1899  amendment   to  the 

2  Cir.    Ct.   Rule   18,    §6.  statute  fixing  the  time  at  fifteen  in- 

3  Jud.  Act,  ch.  ir5,  S2;  Comp.  stead  of  twenty  days,  and  the  writ 
Laws  1915,  §  12405.  therein    fixed    the   time    for   appear- 

4  Cir.    Ct.   Rule    18,    §  ;}.  anee  at  fifteen  days. 

5  Wright  V.  Wayne  Circuit  Judge,  6  People  v.  Ool)liardt,  154  Mich. 
119    Mich.    499,   which    was  decided       504. 


378  Commencement  of  Actions  §  59 

filed  or  entered  in  the  cause,  in  accordance  with  the  rules  and  practice  of 
the  court,  in  person  or  by  attorney,  within  fifteen  days  after  service  of 
this  summons  upon  you.  Hereof  fail  not,  under  penalty  of  having  judg- 
ment taken  against  you  by  default.     The  plaintiff  claims  damages  in  said 

suit  not  exceeding   dollars.     Service  of  this  summons  shall  be  made 

on  or  before  the    day  of    ,  191..,  which  is  the  return  day 

hereof. 

To  the  Sheriff  of  said  County: 

You  are  hereby  commanded  to  take  said  defendant,  if  he  may  be  found 
in  your  bailiwick,  and  keep  him  in  your  custody  until  he  shall  be  discharged 
according  to  law. 

Witness,  Hon ,  circuit  judge,  and  the  seal  of  said  court,  at  the 

of    ,   the    place   of   holding   said   court,   this    day   of 

,  191.. 

> 

Clerk. 

,  Plaintiff 's  Attorney. 

Business  address:   ,  Mich. 

§  60.  Fixing-  and  indorsing  bail. 

AVliere  the  action  is  based  on  contract,  an  order  for  bail 
is  not  necessary.  In  actions  for  torts,  an  order  for  bail 
must  be  indorsed  on  the  writ  by  a  judge  of  the  court  from 
which  the  writ  issues,  or  a  circuit  court  commissioner, 
directing-  the  amount  in  which  bail  is  to  be  taken.''  De- 
fendant thereupon  shall  be  held  to  bail  in  the  amount 
specified  in  such  order.  The  order  must  be  based  on  the 
affidavit,  and  it  is  the  duty  of  the  judge  or  commissioner 
to  hear  and  investigate;  and  if  the  declaration  and  affi- 
davit set  up  facts  and  circumstances  tending  to  show 
fraud  or  breach  of  trust,  thus  bringing  the  case  within 
the  exceptions  of  the  constitution,  authority  to  act  de- 
pends upon  the  facts,  and  the  determination  of  the  judge 
must  be  held  to  have  all  the  qualities  of  a  judicial  deci- 
sion.® The  judge  may  fix  and  indorse  the  bail  when  he  is 
out  of  the  county  but  yet  in  his  judicial  district.^ 

7Jud.    Act,    ch.    13,    §12;    Comp.  9  Timm  v.  Cass  Circuit  Judge,  192 

Laws  1915,  §  12415.  Mich.   508. 

8  Johnson  v.  Morton,  94  Mich.  1. 


§  62  Commencement  of  Actions  379 

Form  of  Order 

On  reading  the  annexed  affidavit,  it  is  ordered  that  the  defendant  be 
held  to  bail  on  the  within  writ,  in  the  sum  of dollars. 

(Date.)  S.  M.  G.,  Circuit  Judge. 

§  61.  Amount  of  bail. 

The  constitution  provides  that  excessive  bail  shall  not 
be  required.-^"  The  amount  of  bail  in  actions  ex  delicto 
seems  to  be  within  the  discretion  of  the  judge  or  commis- 
sioner making  the  order.  In  actions  ex  contractu,  where 
no  order  is  necessary,  the  amount  is  double  the  amount 
specified  in  the  affidavit  attached  to  the  writ.^^ 

The  court  from  which  the  writ  issues  may,  upon  proper 
showing,  in  an  action  ex  delicto,  increase  or  diminish  the 
amount  for  which  bail  has  been  ordered.^^ 

§  62.  How  capias  served. 

Writs  of  capias  ad  respondendum  are  served  by  the 
sheriff  or  other  officer  by  arresting  the  defendant  and 
keeping  him  in  his  custody  until  discharged  according  to 
law,  and  serving  upon  the  defendant  a  copy  of  the  writ 
and  of  the  declaration  and  supporting  affidavit  or  affi- 
davits upon  which  the  writ  is  founded.^^ 

An  arrest  is  usually  made  by  actual  seizure  of  the  per- 
son or  touching  the  defendant's  body  however  slightl5^ 
But  neither  one  is  necessary.  It  is  well  settled  that  if  the 
defendant  is  within  the  power  of  the  officer  and  submits 
to  him,  it  is  sufficient.  But  where  the  officer  does  no  more 
than  to  inform  the  defendant  of  his  business,  not  taking 

10  Const.  Art.  II,  see.  1.5.  copies    of    the    writ    and    affidavit 

11  Jud.  Act,  ch.  1.3,  §15;  Comp.  upon  the  defendant  does  not  render 
Laws  1915,   §  12418.  the    ser%nce    fatally    defective,    the 

12  Jud.  Act,  ch.  13,  §12;  Comp.  statute  in  this  respect  being  merely 
Laws  1915,   §12415.  directory.      Pixley    v.    Berrien    Cir- 

13  Jud.  Act,  ch.  13,  §14;  Comp.  cuit  Judge,  121  Mich.  629;  People 
Laws  1915,  §12417.  But  it  has  v.  Gebhardt,  154  Mich.  504;  Barker 
been   held    that    a   failure    to    serve  v.  Cook,  40  Barb.  (N.  Y.)  254. 


380  Commencement  of  Actions  §  62 

him  into  custody  and  never  depriving  him  of  freedom  of 
action,  there  has  been  no  arrest.^* 

The  time  and  place  of  service  of  the  writ  is  governed 
by  the  general  rules  relating  to  service  of  process  in  gen- 
eral which  have  already  been  stated  in  this  article." 

§  63.  Return  of  service. 

The  governing  rule  of  court  applies  not  only  to  a  capias 
but  also  to  all  ** original  writs"  i.  e.,  it  includes  the  return 
of  a  summons;  and  as  its  provisions  have  already  been 
stated  they  will  not  be  repeated  in  this  connection." 

By  statute,  however,  if  the  defendant  is  committed  to 
prison  for  want  of  bail,  the  sheriff  or  other  officer  making 
the  arrest  is  required  specially  to  return  upon  the  writ  the 
fact  that  the  defendant  is  imprisoned  for  want  of  bail,^' 
and  should  at  once  notify  the  plaintiff  or  his  attorney. 

Form  of  Return  to  Capias  When  Defendant  Is  Arrested  and  Brought 

Before  the  Court 
State  of  Michigan,   ) 
County  of   ( 

I   hereby  certify   and   return   that,  by  virtue   of   the   within  writ,  to  me 
directed  and  delivered,  I  have  taken  the  within-named   C.   D.,  whose  body 
I  have  ready  in  court,  as  I  am  within  commanded. 
Dated,  etc. 

S.  T., 
Sheriff. 

Form  of  Return  to  Capias  When  One  Defendant  Is  Taken  and  Imprisoned 

for  Want  of  Bail,  and  Another  Defendant  Is  Not  Found 
State  of  Michigan,   J 

County  of   ( 

I   hereby   certify  and   return  that,  by  virtue   of  the  within  writ,   to  me 

directed  and  delivered,  I  did,  on  the   day  of   ,  A.  D , 

take  the  within-named  C.  D.,  whose  body  I  have  in  custody,  in  prison  for 
want  of  bail,  and  did,  at  the  same  time,  serve  upon  the  said  C.  D.  a  copy 

14  Hill    v.    Taylor,    50    Mich.    549.  15  See   §§10,  20,  ante. 

See  also  Brushaber  v.  Stegcman,  22  16  Sec   §§23-27,  ante. 

Mich.    266;    Josselyn   v.    McAllister,  17  Jud.   Act,   ch.   13,    §18;    Comp. 

25  Mich.  47;   Fuller  v.  Bowker,  11  Laws  1915,  §12421. 
Mich.  212. 


§  63  Commencement  of  Actions  381 

of  said  writ  and  of  the  declaration  and  afiBdavit  upon  which  said  writ  is 
founded,   and  of   each   of   which   a  copy   is   hereto   annexed,   by   delivering 

the   same    to   him    personally    at    ;    and   that,    after   diligent   search 

and    inquiry,    I    am    unable    to    find    the    within-named    E.    F.    within    my 
bailiwick. 
Dated,  etc. 

S.  T., 
Sheriff. 

Form  of  Return  to  Capias  When  Defendant  Is  Not  Found 
State  of  Michigan, 
County  of   

I   hereby   certify   and   return   that,   after   diligent   search   and   inquiry,   I 
am  not  able  to  find  the  within-named  C.  D.  within  my  bailiwick. 
Dated,  etc. 

S.  T., 
Sheriff. 

Form  of  Return  to  Capias  When  Defendant  Is  Taken  and  Discharged 

on  Bail 
State  of  Michigan,  ) 
County  of   ( 

I  hereby  certify   and  return   that,   by   virtue  of   the   within  writ,  to   me 

directed  and  delivered,  I  did,  on  the   day  of   ,  A.  D , 

take  the  within-named  C.  D.,  as  I  am  within  commanded,  whose  body  I 
have  since  discharged,  he,  the  said  C.  D.,  having  executed  and  delivered  to 

me  a  bond,  with  E.  F.  and  G.  H.,  of    ,  in  said  county,  as  sureties, 

according  to  law.     And  I  further  certify  that  I  did,  on  the   day  of 

J  A.  D ,  serve  upon  the  said  C.  D.  a  copy  of  said  writ  and  of 

the  declaration  and  affidavit  upon  which  said  writ  is  founded,  and  of  each 
of  which  a  copy  is  hereto  annexed,  by  delivering  the  same  to  him  person- 
ally at    

Dated,  etc.  S.  T., 

Sheriff. 

Form  of  Return  to  Capias  When  Defendant  Is  Taken  and  Imprisoned 

for  Want  of  Bail 
State  of  Michigan,   J 
County  of   ( 

I  hereby  certify   and   return   that,  by   virtue   of  the   within   writ,   to   me 

directed  and  delivered,  I  did,  on  the   day  of    ,  A.  D , 

take  the  wlthin-named  C.  D.,  whose  body  I  have  in  custody,  as  I  am  within 
commanded,  the  said  C.  D.  being  in  prison  for  want  of  bail.  (Conclude 
as  in  general  form.) 

Dated,  etc.  S.  T., 

Sheriff, 


382  Commencement  of  Actions  §  63 

Form  of  Return  to  Capias  After  Rescue 
State  of  Michigan,   ) 
County  of   ( 

I  hereby   certify  and  return  that,  by  virtue   of  the   within  writ,  to  me 

directed  and  delivered,  I  did,  on  the   day  of   ,  A.  D , 

take  the  within-named  C.  D.,  and  safely  kept  him  in  my  custody,  as  I  am 

within  commanded,  until  E.  F.,  of   ,  and  divers  other  persons  to  me 

unknown,   on   the    day   of    ,   A.   D ,   at' ,   with 

force  and  arms  assaulted  and  ill-treated  me,  and  the  said  C.  D.  out  of  my 
custody  then  and  there  rescued,  and  the  said  C.  D.,  then  and  there,  with 
force  and  arms,  rescued  himself,  and  escaped  out  of  my  custody,  against 
the  peace  of  the  people  of  the  state  of  Michigan,  and  afterwards,  after 
diligent  search  and  inquiry,  I  am  not  able  to  find  the  said  C.  D.  within 
my  bailiwick. 

Dated,  etc.  S.  T., 

Sheriff. 

§  64.  Discharge  on  bail  bond. 

Eveiy  defendant  arrested  upon  a  capias  ad  responden- 
dum is  entitled  to  be  discharged  from  sucli  arrest  upon 
executing  to  the  officer  making  the  arrest,  with  the  addi- 
tion of  his  name  of  office,  a  bond  in  a  penalty  equal  to  the 
amount  specified  in  the  order  for  bail  or  in  double  the 
amount  specified  in  the  affidavit  attached  to  the  writ,  as 
the  case  may  be,  with  two  sufficient  sureties,  conditioned 
that  the  defendant  will  appear  in  the  action  commenced 
by  such  writ,  by  putting  in  special  bail  Avithin  fifteen  days 
after  the  service  of  the  writ  upon  him  and  by  perfecting 
such  bail,  if  required,  according  to  tlie  rules  and  prac- 
tice of  the  court." 

§  65.  Bond  for  jail  liberties. 

This  question  is  treated  of  in  another  article." 

V.  By  Attachment 

§  66.  In  general. 

This  matter  is  treated  elsewhere.^® 

18  See  Bah,,  §  2.  tice  has  imposed,   see  De  Meyer  ▼. 

In  regard  to  the  original  purpose  McGonegal,  32  Mich.  120. 

of  this  bail  to  the  sheriff  and  the  19  See  Jail  Liberties. 

modifications    which    modern    prac-  20  See  Attachment. 


Complaint  383 

VI.  By  Replevin 

§  67.  In  general. 

This  question  is  treated  of  under  the  head  of  Replevin. 

COMMERCIAL  PAPER 

See  Bills  and  Notes. 

COMMISSIONERS 

See   Circuit  Court   Commissioners;    Dower;    Depositions;    Garnish- 
ment; Mandamus. 

COMMITMENT 

See  Contempt;  Habeas  Corpus;  Fraudulent  Debtors. 

COMMON   CARRIERS 

See  Carriers. 

COMMON  COUNCIL 

See  Executions;   Mandamus. 

COMMON  COUNTS 

See  Assumpsit;  Pleading. 

COMMON  RULES 

See  Motions,  Etc. 

COMMUNICATIONS 

See  Evidence;   Trial. 

COMPARISON 

See  Evidence  (comparison  of  handwriting). 

COMPLAINT 

See  Pleading;  Summary  Proceedings. 


384  Compromise 

COMPROMISE 

See  Attorneys. 

COMPUTATION  OF  TIME 

See  Time. 

CONCEALMENT 

See  Attachment;  Limitation  of  Actions. 

CONCLUSIONS 

See  Pleading;  Commencement  of  Actions  (conclusions  in  affidavit  for 
capias). 

CONDEMNATION   PROCEEDINGS 

See  Jury;  Change  of  Venue;  Certiorari. 

CONDUCT 

See  Trial;  New  Trial. 

CONDUCTOR 

See  Commencement  of  Actions  (service  on). 

CONFESSION  OF  JUDGMENT 

§  1.  How  and  when  judgment  may  be  confessed. 
§  2.  What  confession  is. 
§  3.  Purpose  of  statute. 
§  4.  Warrant  of  attorney. 

§  5.  Who  may  give. 

§  6.  Proof  of. 

§  7.  Practical  uses  of  warrants  to  confess  judgments. 

Cross-references:  Tender;  Defaults;  Payment  Into  Court;  Offer  oi 
Judgment. 

§  1.  How  and  when  judgment  may  be  confessed. 

The  statute  ^  provides  that  judgments  may  be  entered 
in  any  circuit  court,  in  vacation  as  well  as  in  term,  upon 

1  Jud.    Act,    eh.    22,    §  .3 ;    Comp. 
Laws  1915,  §  12793. 


§  4  Confession  of  Judgment  385 

a  plea  of  confession,  signed  by  an  attorney  of  such  court, 
although  there  be  no  suit  then  pending  between  the  par- 
ties, if  the  following  provisions  be  complied  with,  and  not 
otherwise : 

1.  The  authority  for  confessing  such  judgment  shall  be 
in  some  proper  instrument,  distinct  from  that  containing 
the  bond,  contract  or  other  evidence  of  the  demand  for 
which  such  judgment  was  confessed.^ 

2.  Such  authority  shall  be  produced  to  the  officer  sign- 
ing such  judgment  and  shall  be  filed  with  the  clerk  of  the 
court  in  which  the  judgment  is  entered  at  the  time  of  the 
filing  and  docketing  of  such  judgment. 

§  2.  What  confession  is. 

A  confession  of  judgment  is  a  voluntary  submission  to 
the  jurisdiction  of  the  court,  without  the  issuing  or  serv- 
ice of  process,  with  the  consent  that  judgment  be  entered 
against  the  party  giving  it.^ 

§  3.  Purpose  of  statute. 

The  statute  does  not  restrict  the  right  of  a  debtor  to 
make  such  contract  as  he  may  find  necessary  or  most 
advantageous  to  himself,  but  was  designed  to  establish  a 
rule  of  practice  under  which  judgments  by  confession 
may  be  entered  in  vacation  as  well  as  in  term.  In  other 
words,  it  is  an  extension  of  the  common  law  practice  to 
the  entry  of  judgment  in  vacation.* 

§  4.  Warrant  of  attorney. 

The  warrant  or  authority  to  confess  judgment,  techni- 
cally denominated  a  ''warrant  of  attorney,"  must,  both 
by  the  statute  and  by  the  common  law,  be  in  a  separate 

2  Warrant    contained    in    promis-  4  Trombly    v.    Parsons,    10    Mich. 

«ory   note  is  void.     Acme  Food   Co.       272. 
V.  Kirseh,  166  Mich.  433, 

8  First  Nat.  Bank  v.  Garlinghouse, 
53  Barb.   (N.  Y.)    619. 
1  Abbott— 25 


386  Confession  of  Judgment  §  4 

instiniment  from  that  containing  the  promise  or  obliga- 
tion, although  it  may  be  a  part  of  the  contract  that  sncli 
a  power  shall  be  given.  The  warrant  and  the  obligation 
may  be  separate,  although  executed  at  the  same  time  and 
on  the  same  piece  of  paper  and  although  the  warrant  does 
not  describe  the  obligation,  but  refers  to  it  as  attached 
thereto.  The  time  of  the  execution  of  the  warrant  is  im- 
material. Neither  the  statute  nor  the  common  law  im- 
poses any  restriction  in  this  respect.^  The  authority  to 
confess  judgment  under  the  warrant  must  be  strictly 
followed.^ 

§  5.  Who  may  give. 


An  infant  cannot  in  his  own  name  confess  a  judgment."'^ 
Partners  have  no  implied  authority  to  confess  judgments 
for  each  other.*  The  treasurer  of  a  corporation  has  no 
implied  power  as  such  to  confess  a  judgment  against  the 
corporation.^  But,  generally,  any  one  not  incapacitated 
to  make  a  contract  binding  upon  himself  may  execute  a 
warrant  of  attorney  to  confess  a  judgment. 

§  6.  Proof  of. 

A  warrant  of  attorney  does  not  need  to  be  proved  be- 
fore the  judgment  is  taken,  unless  a  year  and  a  day  shall 
have  elapsed  subsequent  to  the  warrant.^" 

§  7.  Practical  uses  of  warrants  to  confess  judgments. 

A  common  use  of  warrants  of  attorney  to  confess  judg- 
ment against  the  maker  and  in  favor  of  a  person  named  is 

6Trombly    v.    Parsons,    10    Mich.  6  Cow.  (N.  Y.)  393;  Knox  v.  Flack, 

272.  22  Pa.   St.   337. 

6  In     re     Raynior's     Estate,     16")  8  Soper  v.   Fry,  37   Mich.   236. 
Mich.  259.  9  Stevens  v.  Carp  River  Iron  Co., 

7  Acme   Food    Co.   v.    Kirseh,   166  57   Mich.   427. 

Mich.   433;    Soper  v.  Fry,   37   Mich.  10  Elliott    v.    Ives,    44    Mich.    190, 

236,   citing    Saunderson    v.    Marr,    1  citing  Manufacturers'  &  Mechanics' 

H.    Bl.    75;    Ashlin    v.    Langton,    4  Bank   v.    St.   John,   5   Hill    (N.   Y.) 

Moore  &  S.   719;    Bennett  v.  Davis,  497. 


Confidential  Communications  387 

as  security  in  the  hands  of  a  creditor."  A  warrant  may 
recite  an  accompanying  bond  stating  the  terms  upon 
which  it  was  given,  and  be  available  only  upon  a  breach 
of  the  bond,  as,  upon  default  in  the  payment  of  money,  in 
which  event,  the  creditor  may  procure  a  judgment  at  once 
without  the  delay  of  a  suit.^^  A  judgment  may  be  con- 
fessed to  secure  future  advances.^^  After  the  entry  of 
judgment  by  virtue  of  a  warrant  of  attorney,  the  warrant 
is  functus  officio,  and  no  other  judgment  can  be  entered 
on  it.i* 

Form  of  Judgment  by  Confession  on  Note  and  Warrant  of  Attorney 

(Title  of  cause.) 

On  reading  and  filing  note  and  warrant  of  attorney  and  declaration  in 
this  cause  and  cognovit  confessing  the  action  of  the  said  plaintiff  to  the  sum 
of  ....   dollars,  damages;  therefore,  it  is  considered  that  the  said  plaintiff 

do  recover  against  the  said  defendant  his  damages  in  the  sum  of    

dollars,  so  confessed  as  aforesaid,  together  with  his  costs  and  charges  by 
him  about  his  suit  in  this  behalf  expended,  to  be  taxed,  and  that  the  said 
plaintiff  have  execution  therefor. 

Form  of  Judgment  by  Confession  on  Bond  and  Warrant  of  Attorney 

(Title  of  cause.) 

On  reading  and  filing  bond  and  warrant  of  attorney  and  declaration  in 
this  cause  and  cognovit  confessing  the  action  of  the  said  plaintiff  to  the 
sum  of dollars,  debt ;  therefore,  it  is  considered  that  the  said  plain- 
tiff do  recover  against  the  said  defendant  his  debt  aforesaid,  to  be  dis- 
charged upon  the  payment  of  the  sum  of   dollars   (the  amount  due 

by  the  condition  of  the  bond),  together  with  his  costs  and  charges  by  him 
about  his  suit  in  this  behalf  exjiended,  to  be  taxed,  and  that  he  have  execu- 
tion therefor. 

CONFIDENTIAL  COMMUNICATIONS 

See  Evidence. 

11 A    promissory    note    containing  Co.   v.   Kirsch,   166   Mich.  433. 

a  power  of  attorney  to  confess  judg-  12  And.    Law    Diet.    tit.    "Attor 

ment    in    case    of    default    in    pay-  ney";  3  Cooley's  Bl.  Comm.  397. 

ment  is  known  as  a  judgment  note.  13  Brinkerhoff  v.  Marvin,  5  Johns. 

They  are  not  used  in  Michigan,  the  Ch.    (N.  Y.)   320;   Cook  v.  Whipple, 

statute  requiring  the  obligation  and  55  N.  Y.   150;   Livingston  v.  Mcln- 

the  warrant  to  be  in  distinct  instru-  lay,  16  Johns.   (N.  Y.)   165;   Averill 

ments.    Jud.  Act,  eh.  22,  §3;  Comp.  v.   Loucks,  6  Barb.    (N.  Y.)    19. 

Laws    1915,     §12793;     Trembly    v.  14  Manufacturers'     &     Mechanics' 

Parsons,  10  Midi.  272;    Acme  Food  Bank  v.  Cowden,  3  Hill  (N.  Y.)  461. 


388  Consent 

CONSENT 

Consent  cannot  confer  jurisdiction  of  the  subject  mat- 
ter (see  Courts,  §  6).  It  may  be  effective,  however,  in 
case  of  a  reference  (see  References)  or  substitution  of 
attorneys  (see  Attorneys).  It  is  sometimes  necessary  as 
in  case  of  the  appointment  of  a  next  friend  (see  Guard- 
ians, etc.).  Consent  to  an  adjudication  prevents  a  review 
thereof  on  a  writ  of  error  (see  Error,  Writ  of). 

CONSIDERATION 

See  Pleading. 

CONSOLIDATION 

See  Consolidation  of  Actions;  Error,  Writ  of;  Probate  Courts. 

CONSOLIDATION  OF  ACTIONS 

§  1.  Eight  to  and  propriety  of. 

§  2.  Motion  for  consolidation. 

§  3.  Wlio  may  move. 

§  4.  When  motion  may  be  made. 

§  5.  Discretion  of  court. 

§  6.  Order  and  effect  thereof. 

§  7.  Costs. 

§  8.  Consolidation  by  consent. 

§  9.  Consolidation  on  court's  own  motion. 

§  10.  Ex  parte  consolidation  by  plaintiff. 

§  1.  Right  to  and  propriety  of. 

The  practice  of  consolidating  cases  was  established  at 
common  law,^  and  the  state  of  New  York  and  several 
others  have  confirmed  it  by  statute.  In  Michigan,  it  has 
been  provided  that,  whenever  several  suits  are  pending 
(1)  in  the  same  court,  (2)  by  the  same  plaintiff  against 
the  same  defendant,  (3)  for  causes  of  action  which  may 
be  joined,  the  court  in  which  they  are  prosecuted  may,  in 

1  Harris    v.    Sweetland,    48    Mich. 
110. 


§  2  Consolidation  of  Actions  389 

its  discretion,  if  it  appears  expedient,  order  them  to  be 
consolidated  into  one  action.^ 

What  causes  of  action  may  be  joined  in  the  same  action 
is  stated  in  another  place,^  and  the  rule  in  respect  to  con- 
solidating causes  is,  in  general,  that  only  those  suits  can 
be  consolidated  the  causes  of  action  of  which  might  orig- 
inally have  been  properly  included  in  one  action.  The 
fact  that  the  suits  were  not  commenced  at  the  same  time, 
or  the  fact  that  the  cause  of  action  in  one  accrued  after 
the  commencement  of  the  other,  is  immaterial;*  but  the 
parties  in  each  of  the  snits  the  consolidation  of  which  is 
proposed  must  be  identical,  and,  in  this  state,  the  suits 
must  be  pending  in  the  same  court. 

Neither  the  common  law  nor  any  statute  has  author- 
ized the  consolidation  of  cross-actions.  Parties  cannot, 
even  by  stipulation,  require  the  same  jury  to  hear  in  one 
case  and  decide  by  one  verdict  a  series  of  issues  wholly 
incompatible  and  incapable  of  being  tried  together.^ 

The  cases  in  which  consolidation  has  been  ordered  are 
mostly  those  of  actions  ex  contractu.  Instances  of  the 
consolidation  of  actions  ex  delicto,  while  known,  are  ex- 
tremely rare. 

§  2.  Motion  for  consolidation. 

Unless  the  consolidation  is  by  the  consent  and  agree- 
ment of  the  parties,  it  is  necessaiy  for  the  party  who  de- 
sires it  to  apply  for  an  order  upon  special  motion,  the 

2  Jud.     Act,    eh.     8,     §  1 ;     Comp.  Stay  of  proceedings  distinguished 

Laws  1915,   §  12309.  from   consolidation,  see   Wooster   v. 

Appeals  from  the  probate  to  the  Case,  58  Hun   (N.  Y.)    605. 

circuit   court   may   be   consolidated.  3  See   Joinder  and  Splittinq   of 

Wisner  v.  Mabley 's  Estate,  70  Mich.  Causes  of  Action. 

271.  4  Dunning  v.  Bank  of  Auburn,  19 

The   object    of   such   a  statute   is  Wend.  (N.  Y.)  23. 

to  prevent  oppression  by  the  unnec-  5  Harris    v.    Sweetland,    48    Mich, 

essary  accumulation  of  costs.   Brew-  HO. 
stcr   V.   Stewart,   3   Wend.    (N.   Y.) 
441. 


390  Consolidation  of  Actions  §  2 

practice  upon  which  is  in  all  respects  the  same  as  in  other 
cases  of  special  motions.* 

Form  of  Affidavit  for  Oonsolidation  of  Causes 

(Title  of  court  and  causes  to  be  consolidated.) 
County  of ,  ss. 

C.  D.,  being  duly  sworn,  deposes  and  says  that  he  is  the  defendant  in 
each  of  the  above-entitled  causes  named;  that  the  first  named  of  the  said 
causes  is  an  action  of  assumpsit  (or,  as  the  case  may  be),  brought  for  goods 
sold  and  delivered  by  the  said  plaintiff  to  the  said  defendant  (or,  as  the 
case  may  be),  and  that  the  second  named  of  said  causes  is  an  action  of 
assumpsit  (or,  as  the  case  may  be),  brought  for  work  and  labor  done  and 
performed  by  the  said  plaintiff  for  the  said  defendant  (or,  as  the  case  may 
be). 

Deponent  further  says  that  he  has  fully  and  fairly  stated  the  facts  per- 
taining to  said  actions  to  K.  L.,  his  counsel  therein,  who  resides  at , 

and  that  he  has  a  good  and  sufficient  defense  on  the  merits  to  each  of  the 
said  actions,  as  he  is  advised  by  his  said  counsel  upon  such  statement  made 
as  aforesaid  and  verily  believes;  that  the  questions  which  will  arise  in  each 
of  said  actions  are  substantially  the  same ;  that  the  defense  of  the  said 
defendant  is  that  (state  briefly  what)  ;  and  that  the  said  actions  are  such 
as  may  bo  properly  consolidated,  as  this  deponent  is  advised  by  his  said 
counsel,  after  such  statement  as  aforesaid,  and  verily  believes. 

(If  no  defense  is  intended,  pursue  the  foregoing  form  as  far  as  and 
including  the  words,  ' '  for  the  said  defendant, ' '  after  which  proceed  as 
follows:  And  deponent  further  says  that  he  does  not  intend  to  make  any 
defense  to  either  of  the  said  actions;  that  the  consolidation  of  said  causes 
would  save  him  considerable  expense,  which  he  would  be  compelled  to  pay 
if  judgment  were  entered  separately  in  each  of  said  actions;  and  that  said 
actions  are  such  as  may  be  properly  consolidated,  as  he  verily  believes.) 
Subscribed,  etc. 

C.  D. 

§  3.  Who  may  move. 

Either  the  plaintiff  or  the  defendant  may  move  for  a 
consolidation  of  causes.  In  practice,  it  more  frequently 
occurs  that  the  motion  is  made  by  the  defendant  than  by 
the  plaintiff.' 

§  4.  When  motion  may  be  made. 

It  has  been  held  that  the  motion  should  not  be  made 

6  See  Motions  and  Orders.  York,  see  Briggs  v.  Gaunt,  11  Super. 

7  That   motion    may    be   made    by       Ct.    (4  Duer)    664. 
plaintiff  under  like  statute   in  New 


§  7  Consolidation  of  Actions  391 

until  the  cases  are  at  issue,*  but  the  statute  does  not  im- 
pose this  restriction  in  this  state,  and,  while  there  may 
be  good  reason  for  delaying  the  motion  until  the  issues 
have  been  fixed  in  the  several  suits,  yet  the  matter  is  one 
over  which  the  court  in  which  the  motion  is  made  has  en- 
tire control  and  that  court  may,  at  any  stage  of  the  pro- 
ceedings, order  the  consolidation  if  it  appears  expedient. 
In  any  event,  the  motion  should  be  seasonably  made;  and, 
in  this  connection,  it  has  been  held  that  it  is  too  late  to 
move  to  consolidate  when  the  cases  are  called  for  trial.® 

§  5.  Discretion  of  court. 

The  granting  of  a  motion  to  consolidate  actions  rests  in 
the  discretion  of  the  court,  by  express  statutory  provision, 
and  will  not  be  interfered  with  except  in  case  of  clear 
abuse.  And  the  fact  that  the  causes  of  action  might  have 
been  joined  in  one  suit  does  not  require  the  granting  of 
the  motion  for  a  consolidation. ^° 

§  6.  Order  and  effect  thereof. 

If  a  motion  to  consolidate  is  granted,  the  court  will 
enter  an  order  that  the  suits  be  consolidated,  and  thence- 
forth they  will  proceed  together  as  one  action,  the  same 
in  all  respects  as  if  they  had  been  originally  commenced 
as  a  single,  instead  of  as  several,  actions. 

§7.  Costs. 

It  has  been  held  that,  where  a  motion  to  consolidate  is 
granted,  costs  should  not  be  allowed;  ^^  but  the  matter  of 
costs  on  motions  to  consolidate,  as  on  other  special  mo- 
tions, is  within  the  discretion  of  the  court,  and  no  rule  ap- 
plicable to  the  circumstances  of  all  cases  can  be  stated.  It 
should,  however,  be  said  that  the  bringing  of  several  suits 

8Le   Roy  v.   Bedell,  1   Code  Rep.  10  Boyle    v.    Staten    Island,    ete., 

N.  S.    (N.  Y.)    201.  Land  Co.,  87  Hun  (N.  Y.)  233. 

9  Eleventh    Ward    Sav.    Bank    v.  H  Ferris  v.  Belts,  2  How.  Pr.  (N. 

Hay,  8  Daly   (N.  Y.)   328,  73  N.  Y.  Y.)    78. 
609. 


392  Consolidation  op  Actions  §  7 

which  might  have  been  joined,  instead  of  a  single  suit 
covering  the  causes  of  action  in  all,  is  a  matter  for  which 
the  plaintiff  alone  is  entirely  responsible,  and  one  over 
which  the  defendant  has  no  control  whatever,  so  that  it 
would  seem  that,  other  things  being  equal,  a  motion  by 
the  defendant  to  consolidate  should,  if  granted,  more 
reasonably  carry  costs  than  a  motion  made  by  the  plain- 
tiff. But  this  consideration  does  not  always  govern,  and 
is  frequently  outweighed  by  other  circumstances,  so  that 
the  most  that  can  be  said  for  it  is  that  it  does  not  attain 
to  the  dignity  of  a  general  rule,  but  amounts  only  to  a 
tendency,  by  which  the  discretion  of  the  court  will,  in 
some  degree,  be  influenced. 

§  8.  Consolidation  by  consent. 

If  the  parties  to  several  suits  stipulate  that  the  causes 
may  be  consolidated,  a  rule  may  be  filed,  as  in  other  cases 
of  rules  by  consent,  and  thereupon,  if  the  suits  be  such 
that  a  consolidation  of  them  is  proper,  the  causes  will 
proceed  as  a  single  action,  in  the  same  manner  and  with 
the  like  effect  as  if  the  consolidation  had  been  ordered  by 
the  court  on  special  motion. 

§  9.  Consolidation  on  court's  own  motion. 

In  proper  cases,  the  court  may,  on  its  own  motion,  enter 
an  order  consolidating  several  suits  pending  before  it." 

§  10.  Ex  parte  consolidation  by  plaintiff. 

When  several  suits  have  been  commenced  against  joint 
and  several  debtors  in  the  same  court,  the  plaintiff  may, 
in  any  stage  of  the  proceedings,  consolidate  them  into  one 
action. ^^  A  special  motion  or  the  consent  of  the  defeiid- 
dants  is  unnecessary.     The  consolidation  is  effected  by 

12  Wism-r  v.   Mablcy  's  Estate,   70  For     construction     of     practically 

Mich.  271.  identical  statute  in  New  York,  see 

13Ju(l.    Act,    eh.    8,    §1;     Coinj).  Briggs   v.   Gaunt,   11    Super.   Ct.    (4 

Laws  1915,  §  12309.  Duer)    664. 


Contempt  393 

the  filing  or  entry  of  a  common  rule  in  the  office  of  the 
clerk  of  the  court  in  which  the  actions  are  pending,  and 
giving  notice  thereof  to  the  defendants  as  in  other  cases. 

CONSTITUTIONAL    LAW 

Questions  of  constitutional  law  are  reviewable,  under 
certain  conditions,  on  a  writ  of  error  (see  Error,  Writ  of), 
writ  of  certiorari  (see  Certiorari),  and  in  quo  warranto 
proceedings  (see  Quo  Warranto). 

CONSTRUCTION 

See  Pleading;  Instructions;  Vekdict  and  Findings;  Assignments  or 
Error;  Garnishment  (construction  of  statutes);  Attachment  (construc- 
tion of  statutes) ;  Judgments. 

CONTEMPT 

§    1.  Power  to  punish  at  common  law. 

§    2.  Classification. 

§    3.  Power  of  courts  of  record  in  Michigan  to  punish. 

§    4.  When  court  may  proceed  summarily. 

§    5.  Procedure  in  case  of  contempt  of  order  for  payment  of  money. 

§    6.  Order  to  show  cause  and  attachment. 

§    7.  Procedure  to  compel  return  of  process  and  putting  in  special  bail. 

§    8.  Habeas  corpus  instead  of  attachment  when  party  in  custody. 

§    9.  Bond  for  appearance. 

§  10.  Disposition  of  arrested  party. 

§  11.  Return  of  appearance  bond. 

§  12.  Procedure  to  compel  return  of  attachment. 

§  13.  Hearing. 

§  14.  Punishment. 

§  15.  Payment  to  aggrieved  party. 

§  16.  Imprisonment  until  act  performed. 

§  17.  Proceeding  in  case  defendant  does  not  appear. 

§  18.  Damages  in  actions  upon  appearance  bonds. 

§  19.  Who  may  prosecute  appearance  bond  and  procedure. 

§  20.  Actions  against  officers  for  taking  insufficient  sureties. 

§  21.  Duty  of  officer  as  to  custody. 

§  22.  Review  of  judgment. 

§  23.  Effect  of  commitment  on  rights  of  party. 

CrossEeferences:  Service  op  Papers;  Subpoenas;  Supplementary  Pro- 
ceedings; Mandamus. 


394  Contempt  §  1 

§  1.  Power  to  punish  at  common  law. 

The  power  to  punish  for  contempt  has  existed  and  been 
used  immemorially  by  the  superior  courts  of  England,^ 
and  seems  to  have  originated  in  the  fact  that  the  king,  in 
contemphition  of  law,  w^as  supposed  to  be  always  present 
in  his  courts.  The  power,  therefore,  has  been  said  at  com- 
mon hiw  to  have  been  confined  to  courts  of  record,  and 
not  to  have  been  possessed  by  the  inferior  courts,  and  ac- 
cordingly has  been  denied  to  justices  of  the  peace.'^  But 
it  is  generally  held  that  the  power  arises  as  a  necessaiy 
incident  in  creating  a  court.* 

§2.  Classification. 

Blackstone  classifies  contempts  as  either  direct,  which 
openly  insult  or  resist  the  powers  of  the  court  or  the  per- 
son of  the  judges  who  preside  there,  or  consequential, 
which,  without  such  gross  insolence  or  direct  opposition, 
plainly  tends  to  create  a  universal  disregard  of  their 
authority.*  The  same  classification  is  recognized  in  this 
state  and  is  important  in  that  the  method  of  procedure  is 
entirely  different  in  the  two  classes.  A  direct  contempt, 
committed  in  the  immediate  view  and  presence  of  the 
court,  will  be  noticed  by  the  court,  and,  on  its  own  motion, 
it  will  punish  summarily  in  the  mode  pointed  out  by  the 
statute;  but  those  not  committed  in  its  immediate  view 
and  presence  must  be  brought  before  the  court  by  the 
affidavit  of  the  persons  who  witnessed  them  or  have 
knowledge  of  them.^    In  neither  case  is  the  accused  en- 

14  Cooley's  Bl.  Comm.  283;  Nich-  Act,     eh.     79,     Comp.     Laws     1915, 

ols  V.  Judge  of  Superior  Court,  130  §  14442  et  seq. 

Mich.  187.  Sin  re  Cooper,  32  Vt.  253;  Brown 

2  Noyes  v.  Byxbee,  45  Conn.  382 ;  v.  People,  19  III.  613 ;   Middlebrook 

Rhinehart  v.  Lance,  43  N.  J.  L.  311 ;  v.  State,  43  Conn.  257;  Respublica  v. 

Queen  v.  Lefroy,  L.  R.  8  Q.  B.  134;  Oswald,  1  Dall.   (U.  S.)   319;   In  re 

Albright  v.  Lapp,  26  Pa.  St.  99.     In  Chadwiek,  109  Mich.  588. 

Michigan,  justices  of  the  peace  are  4  4  Cooley's  Bl.  Comm.  283,  284. 

by    statute    vested    with    a    limited  5  In  re  Wood,  82  Mich.  75. 
power  to  punish  for  contempt.    Jud. 


§  3  Contempt  395 

titled  to  a  trial  by  jury.^    The  Judicature  Act  abolishes 
the  distinction  between  civil  and  criminal  contempts. 

§  3.  Power  of  courts  of  record  in  Michigan  to  punish. 

Courts  of  record  in  this  state  have  inherent  power  to 
hear  and  determine  all  contempts  of  court  which  the  su- 
perior courts  of  England  had  at  the  common  law,  and  the 
statute  has  not  undertaken  to  limit  or  prohibit  their  juris- 
diction in  the  matter.  The  statutes  are  in  affirmation  of 
the  common  law  power  of  courts  to  punish  for  contempts, 
and,  while  not  attempting  to  curtail  the  power,  they  have 
regulated  the  mode  of  proceeding  and  prescribed  what 
punishment  may  be  inflicted.'  By  the  terms  of  the  stat- 
ute, every  court  of  record  has  power  to  punish  by  fine 
or  imprisonment  or  both  persons  guilty  of  any  neglect 
or  violation  of  duty  or  misconduct  in  the  following  cases, 
and  no  others :  * 

1.  Disorderly,  contemptuous  or  insolent  behavior,  com- 
mitted during  its  sitting,  in  its  immediate  view  and  pres- 
ence, and  directly  tending  to  interrupt  its  proceedings  or 
to  impair  the  respect  due  to  its  authority. 

2.  Any  breach  of  the  peace,  noise  or  disturbance  direct- 
ly tending  to  interrupt  its  proceedings. 

3.  All  attorneys,  counselors,  clerks,  registers,  sheriffs, 
coroners  and  all  other  persons  in  any  manner  duly  elected 
or  appointed  to  perform  any  judicial  or  ministerial  serv- 
ices for  any  misbehavior  in  such  office  or  trust  or  for  any 
willful  negligence  or  violation  of  duty  therein,  for  dis- 
obedience of  any  process  of  the  court  or  any  lawful  order 

6  In  re  Chadwick,  109  Mich.  588;  were  elassificd  as  criminal  contempts 

In  re  Dingley,  182  Mich.  44.  and  part  as  civil  contempts  prior  to 

7Langdon       v.      Wayne       Circuit  tlie   Judicature   Act. 

Judges,    76    Mich.    358;    Nichols    v.  That  jurisdiction  of  court   is  not 

Judge  of  Superior  Court,  130  Mich.  limited  to  causes  specified  in  statute, 

187;   In  re  Dingley,  182  Mich.  44.  notwithstanding     the     express     lan- 

8  Jud.  Act,  ch.  5,  8  1 ;  Comp.  Laws  guage  thereof,  see  Nichols  v.  Judge 

1915,  §12268.  of   Superior    Court,    130    Mich.    187, 

Part  of  the  acts  enumerated  herein  193;   In  re  Emory,  149  Mich.  183. 


396  Contempt  §  3 

of  the  court  or  of  a  judge  of  the  court  or  of  any  officer 
authorized  to  perform  the  duties  of  such  judge.® 

4.  Parties  to  suits  for  putting  in  fictitious  bail  or  sure- 
ties or  for  any  deceit  or  abuse  of  the  process  or  proceed- 
ings of  the  court. 

5.  Parties  to  suits,  attorneys,  counselors  and  all  other 
persons  for  the  non-payment  of  any  sum  of  money  ordered 
by  the  court  to  be  paid  in  cases  where  by  law  execution 
cannot  be  awarded  for  the  collection  of  such  sum,^"  the 
disobedience  or  refusal  to  comply  with  any  order  of  the 
court  for  the  payment  of  alimony,  either  permanent  or 
temporary,"  or  costs  made  in  any  suit  for  divorce  or 
separate  maintenance,  and  for  any  other  disobedience  to 
any  lawful  order,  decree  or  process  of  the  court. ^^ 

6.  All  persons  for  assuming  to  be  officers,  attorneys  or 
counselors  of  the  court  and  acting  as  such  without  author- 
ity, for  rescuing  any  property  or  persons  in  the  custody 
of  an  officer  by  virtue  of  process  issued  from  the  court, 
for  unlawfully  detaining  any  witness  or  party  to  a  suit 
while  going  to,  remaining  at  or  returning  from  the  court 
where  the  suit  is  pending  for  trial  and  for  any  other  un- 
lawful interference  with  or  resistance  to  the  process  or 
proceedings  in  any  action.  It  is  not  necessary  that  the 
witness  detained  should  have  been  subpoenaed  in  order  to 
constitute  the  offense. ^^  One  who  conceals  himself  to 
avoid  the  service  of  process  in  a  suit  against  him  is  not 
regarded  as  interfering  with  the  process  or  proceedings 

9  Ex  parte  Toepel,   139  Mich.   85,  &  M.  E.  Co.,  184  Mich.  242,  order  in 

presmitation   by   coroner   of   fraudu-  mandamus;     Davis    Colliery    Co.    v. 

lent  claim  against  state  to  judge.  Charlevoix    Sugar    Co.,    157    Mich. 

lOSwarthout  v.   Lucas,   102   Mich."  102;   Central  Nat.  Bank  v.  Graham, 

492;     Haines    v.    Haines,    35    Midi.  118  Mich.  488,  order  in  supplomen- 

138;   North  v.  North,  39  Mich.  67;  tary  proceedings. 

Carnahan    v.    Carnahan,    143    Mich.  Disobedience  of  a  void  order  is  not 

390 ;    Mast    v.    Washtenaw    Circuit  a  contempt.    In  re  Briggs,  178  Mich. 

Judge,  154  Mich.  485.  28. 

11  Mayer  v.  Mayer,  154  Mich.  386.  18  Montgomery   v.    Muskegon   Cir- 

12  Michigan  Ry.  Comm.  v.  Detroit  cuit  Judge,  100  Mich.  436, 


§  3  Contempt  397 

in  the  suit.^*    But  an  attempt  to  bribe  a  juror  or  intimi- 
date a  witness  constitutes  such  interference." 

7.  All  persons  summoned  as  witnesses  for  refusal  or 
neglect  to  obey  such  summons  or  to  attend  or  to  be  sworn 
or,  when  sworn,  to  answer  any  legal  and  proper  interroga- 
tory. But  a  witness  who  has  been  committed  for  such  re- 
fusal is  entitled  to  be  discharged  when  the  suit  in  which 
he  was  summoned  is  discontinued,  because  it  is  then  im- 
possible for  him  to  purge  the  contempt. ^^ 

8.  Persons  summoned  as  jurors  in  any  court  for  im- 
properly conversing  with  any  party  to  a  suit  to  be  tried 
at  the  court  or  with  any  other  person  in  relation  to  the 
merits  of  the  suit,  for  receiving  communications  from  any 
such  party  or  from  any  other  person  in  relation  to  the 
merits  of  the  suit  without  immediately  disclosing  them  to 
the  court. 

9.  All  inferior  magistrates,  officers  and  tribunals  for 
disobedience  of  any  lawful  order  or  process  of  a  superior 
court  or  for  proceeding  in  any  cause  or  matter  contrary 
to  law  after  such  cause  or  matter  has  been  removed  from 
their  jurisdiction. 

10.  The  publication  of  a  false  or  grossly  inaccurate  re- 
port of  its  proceedings,  but  not  for  the  publication  of  true, 
full  and  fair  reports  of  any  trial,  argument,  proceedings 
or  decision  had  in  the  court.  The  power  is  not  limited  to 
cases  still  pending,  but  extends  to  past  judgments  and 
decrees. ^''^ 

11.  All  other  cases  where  attachments  and  proceedings 
as  for  contempts  have  been  usually  adopted  and  prac- 
ticed in  courts  of  record  to  enforce  the  civil  remedies  of 
any  party  or  to  protect  the  rights  of  a  party." 

14Brodrick     v.     Genesee     Circuit  Emery,  149  Mich.  383. 

Judge,  125  Mich.  274.  16  In  re  Hall,  10  Mich.  210. 

15  Lanpdon      v.      Wayne      Circuit  17  lu  re  Chadwick,  109  Mich.  588. 

Judges,    76    Mich.    358;    Nichols    v.  18  Jud.    Act,    ch.    5,     §1;     Comp. 

Judge  of  Superior  Court,  130  Mich.  Laws   1915,   §12268;    In  re   Adams, 

187;      Russell     v.     Wayne     Circuit  7  Mich.  452. 

Judge,    136  Mich.    624.     See   In    re  Failure  to  obey  order  to  produce 


398  Contempt  §  3 

Tlie  fact  that  a  contempt  of  court  involves  a  criminal 
offense  does  not  preclude  the  court  from  punishing  it  as 
a  contempt,^®  nor  does  the  fact  that  the  conduct  has  been 
punished  as  a  contempt  preclude  a  criminal  prosecution, 
but  the  court  before  which  a  conviction  is  had  must  take 
into  consideration  the  i^unishment  before  inflicted  in  im- 
posing sentence.*" 

§  4.  When  court  may  proceed  summarily. 

When  any  misconduct  punishable  by  fine  and  imprison- 
ment as  a  contempt  is  committed  in  the  immediate  view 
and  presence  of  the  court,  it  may  be  punished  summarily, 
by  fine  or  imprisonment  or  both,*^  but,  when  the  miscon- 
duct is  not  so  committed,  the  court  must  be  satisfied  by 
due  proof  by  affidavit  of  the  facts  charged,  and  must 
cause  a  copy  of  the  affidavit  to  be  served  on  the  party  ac- 
cused a  reasonable  time  to  enable  him  to  make  his  de- 
fense, except  in  cases  of  disobedience  to  any  rule  or  order 
requiring  the  payment  of  money  and  of  disobedience  to 
any  subpoena.**  Where,  however,  without  such  affidavit, 
the  accused  party  voluntarily  appears  and  submits  him- 
self to  the  jurisdiction  of  the  court  and  is  given  the  same 
opportunity  to  make  his  defense  that  he  would  have  had 
if  an  affidavit  had  been  filed  and  an  order  to  show  cause 
had  been  issued,  he  cannot  object  to  the  omission.*'  But 
he  must  have  a  fair  opportunity  to  meet  the  charge  of 
contempt  and,  of  course,  the  charge  must  be  substanti- 
ated.** 

While  the  court,  under  this  statute,  may  be  considered 
as  sitting  from  the  beginning  of  its  session  until  the  end 

books  and  papers  is  punishable  un-  22  Jud.    Act,    cli.    5,    §  3 ;    Comp. 

der   this    subdivision.      Metheany    v.  Laws   1915,   §  12270. 

Kent  Circuit  Judge,  142  Mich.  628.  Affidavits  are  necessary  where  the 

19  Nichols  V.  Judge  of  Superior  contempt  was  not  committed  in  the 
Court,  130  Mich.  187.  presence    of    the    court.      Eussell    v. 

20  Jud.  Act,  ch.  5,  §24;  Comp.  Wayne  Circuit  Judge,  136  Mich. 
Laws  1915,  §  12291.  624;  In  re  Wood,  82  Mich.  75. 

21  Jud.    Act,    ch.    5,  §2;     Comp.  23  In  re  McHugh,  152  Mich.  505. 
Laws  1915,  §  12269.                                      24Ilichter  v.  Kabat,  114  Mich.  575. 


§  5  Contempt  399 

thereof,  yet  the  words,  "immediate  view  and  presence," 
are  words  of  limitation  and  exclude  the  idea  of  construc- 
tive presence.  The  immediate  view  and  presence  does 
not  extend  beyond  the  range  of  vision  of  the  judge,  and 
the  term  applies  only  to  such  contempts  as  are  committed 
in  the  face  of  the  court.  Of  such  contempts,  he  may  take 
cognizance  of  his  own  knowledge  and  may  proceed  to 
punish  them  summarily,  basing  his  action  entirely  upon 
his  own  knowledge.  All  other  alleged  contempts  depend 
solely  upon  evidence  and  are  inferences  from  fact,  and  the 
foundation  for  the  proceedings  to  punish  therefor  must  be 
laid  by  affidavit.  They  must  be  brought  before  the  court 
by  the  affidavits  of  the  persons  who  witnessed  them  or 
have  knowledge  of  them,  and  a  rule  is  made,  based  upon 
such  affidavits,  that  the  accused  show  cause  at  a  certain 
time  and  place  why  he  should  not  be  punished  for  the 
alleged  contempt.^^  If  the  contempt  be  committed  in  the 
face  of  the  court,  the  offender  may  be  instantly  appre- 
hended and  imprisoned,  at  the  discretion  of  the  judge, 
without  any  further  proof  or  examination.^^ 

§  5.  Procedure  in  case  of  contempt  of  order  for  payment 
of  money. 
The  statute  provides  that,  when  any  rule  or  order  has 
been  made  for  the  payment  of  costs  or  any  other  sum  of 
money  and  proof  by  affidavit  is  made  of  personal  demand 
of  such  sum  of  money  and  of  refusal  to  pay  it,  the  court 
may  issue  a  precept  to  commit  the  person  so  disobeying 
to  prison  until  such  sum  and  the  costs  and  expenses  of  tlie 
proceeding  shall  be  paid;^''^  but,  with  imprisonment  for 

25  In  re  Wood,  82  Mich.  75.  26  4  Cooley  's  Bl.  Comm.  286. 

Afla.tlavit     must     show     necessary  27  Jud.    Act,    ch.    5,    §4;     Conip. 

facts  with  reasonable  certainty.  Ver-  Laws  1915,  §  12271. 

plank  V.  Hall,  21  Mich.  469.  Personal     demand     is     necessary. 

Affidavit  is  sufficient  although  be-  Edison  v.  Edison,  56  Mich.  185. 

fore  used  on  another  motion.    Mont-  But   if   party   refuses  to  pay,   no 

gomery  v.  Muskegon  Circuit  Judge,  formal  demand   is  necessary.     Potts 

100  Mich.  436.  v.  Potts,  68  Mich.  492. 


400  Contempt  §  5 

debt  forbidden,  a  party  cannot  be  imprisoned  for  non- 
compliance with  an  order  for  the  payment  of  money,  ex- 
cept on  the  ground  of  contempt  of  the  authority  of  the 
court.  There  must  be  in  the  case  something  of  wrong 
beyond  the  mere  failure  to  pay  money;  and  the  party,  be- 
fore he  can  be  convicted  and  punished  for  it,  must  have 
an  opportunity  to  be  heard  in  his  own  exculpation.  He 
cannot  be  ordered  into  confinement  on  papers  he  is  not 
allowed  to  answer,  as  it  cannot  be  known  that  he  might 
not  effectually  disprove  all  charges  against  him,  if  suf- 
fered to  do  so.  It  is  possible  that  he  might  show  that  the 
first  order  was  never  served  upon  him  or  that  no  demand 
of  payment  was  made  or  that,  if  made,  it  was  complied 
with;  or,  failing  in  these,  his  inability  to  pay  may  be  so 
absolute  as  to  constitute  a  most  effectual  excuse.  It  is 
contrary  to  the  first  principles  of  right  to  proceed  to  the 
punishment  of  a  party  upon  a  mere  ex  parte  showing. 
Cases  where  a  party  is  charged  with  contempt  for  the 
non-payment  of  money  ordered  by  the  court  to  be  paid 
should  take  the  ordinary  course  of  proceedings  for  the 
punishment  of  contempts,  giving  the  party  an  opportu- 
nity to  present  what  he  has  to  say  in  his  own  justifica- 
tion.^' The  purpose  of  this  statute  is  to  enable  courts  to 
enforce  interlocutory  orders,  no  other  means  of  enforce- 
ment being  provided  by  statute,  since  the  remedy  by  con- 
tempt proceedings  is  expressly  confined  to  cases  where  by 
law  execution  cannot  be  awarded.*^* 

§  6.  Order  to  show  cause  and  attachment. 

When  the  court  is  satisfied  by  due  proof  by  afiidavit  of 
the  facts  charged,  in  cases  other  than  non-payment  of 
money,  the  court  either  w^ill  grant  an  order  on  the  ac- 

28Stellcr  V.  Steller,  25  Mich.  159.  58  How.  Pr.   (N.  Y.)   128.     For  cer- 

29  Swartliout  v.   Lucas,  102  Mich.  tain   cases  in  which   attachment   for 

492;    Baker   v.   Baker,  23   Hun    (N.  costs    is    provided    for    by    rule    of 

Y.)  356;  O'Gara  v.  Kearney,  77  N.  court,  see  Cir.  Ct.  Eule  41,  §2. 
Y.   423;    Stockbridge 's  Assignment, 


§  7  Contempt  401 

cused  party  to  show  cause  at  some  reasonable  time,  which 
will  be  therein  specified,  why  he  should  not  be  punished 
for  the  alleged  misconduct  or  will  issue  an  attachment  to 
arrest  the  party  and  to  bring  him  before  the  court  to  an- 
swer for  such  misconduct;  ^'^  but  the  attachment  cannot 
be  issued  without  the  express  order  of  the  court,  which, 
based  upon  the  showing  made  to  the  court  of  the  facts 
charged,  is  indispensable.  The  clerk  of  a  court  has  no 
authority  to  issue  an  attachment  without  the  order  of  the 
court,  even  though  affidavits  be  presented  to  him  which, 
in  his  opinion,  justify  the  issuance  of  the  writ.^^ 

Form  of  Order  to  Show  Cause  on  Contempt  Not  in  Presence  of  Court 

In  the  Matter  of  A.  B. 

It  appearing  to  the  court  by  the  affidavit  of  E.  F.  now  on  file  herein  that 
A.  B.  has  been,  and  is,  guilty  of  contemptuous  behavior  directly  tending  to 
interrupt  certain  proceedings  of  the  court  and  to  impair  the  respect  due  to 
its  authority  in   (specify  the  misconduct),  it  is  therefore  ordered  that  the 

said  A.  B.  show  cause  before  this  court  on  the day  of ,  A.  D. 

..•....,  at  o'clock  in  the  noon,  why  he  should  not  be  pun- 
ished for  said  behavior.  And  it  is  further  ordered  that  the  sheriff  of  this 
county  do  cause  a  certified  copy  of  said  affidavit  and  of  this  order  to  be 
served  without  delay  upon  the  said  A.  B.  and  make  and  file  herein  proof 
of  such  service. 

§  7.  Procedure  to  compel  return  of  process  and  putting  in 
special  bail. 
When  a  rule  has  been  entered  in  any  court,  according 
to  the  practice  thereof,  requiring  any  officer  or  other  per- 
son to  whom  any  process  of  the  court  has  been  directed 
and  delivered  to  return  it,  an  attachment  for  disobedience 
of  such  rule  may  issue  according  to  the  practice  of  the 
court  to  arrest  such  officer  or  other  person  to  answer  for 
such  disobedience  without  special  application  to  the 
court.^^    The  rule  of  the  circuit  courts  upon  this  subject 

SOJud.    Act,    ch.    5,     §5;     Comp.  32  J,k1.    Act,    ch.    5,    §6;     Comp. 

Laws  1915,  §12272.  Laws  1915,  §12273. 

31  Thompson  v.  Ellsworth,  .39 
Mich.  710;  In  re  Simons,  49  Mich. 
511. 

1  Abbott— 26 


402  Contempt  §  7 

is  that,  if  any  sheriff  or  coroner  or  person  authorized  fails 
to  return  any  process  to  him  delivered,  on  or  before  the 
return  day  therein  specified,  any  party  interested  in  pro- 
curing a  return  may  cause  a  rule  to  he  filed  requiring 
such  officer  or  person  to  return  the  process  within  five 
days  after  sei'\'ice  of  notice  of  such  rule;  and  if  the  proc- 
ess be  not  returned  within  the  time  specified  in  the  rule, 
on  filing  with  the  clerk  an  affidavit  of  the  service  of  the 
notice  and  of  the  delivery  of  the  process  to  the  officer  or 
person  to  be  served,  the  default  of  the  officer  or  person 
in  not  making  a  return  may  be  filed,  and  thereupon  an  at- 
tachment may  be  issued  of  course  against  such  sheriff  or 
coroner  or  authorized  person  to  compel  a  return.^' 

It  is  also  provided,  in  connection  with  suits  commenced 
by  capias  ad  respondendum,  that  if  special  bail  is  not  put 
in  and  perfected  within  the  time  limited,  upon  filing  an 
affidavit  that  special  bail  has  not  been  put  in  and  per- 
fected and  that  the  writ  has  been  returned  served,  a  rule 
may  be  entered  with  the  clerk  of  the  court,  in  vacation  or 
term,  requiring  the  sheriff  or  other  officer  making  the 
arrest  to  put  in  and  perfect  special  bail  within  twenty 
days  after  service  of  notice  of  such  rule;  and,  if  such  bail 
be  not  put  in  and  perfected  within  the  time  specified  in 
the  rule,  upon  filing  an  affidavit  of  the  service  of  notice 
thereof,  a  rule  may  be  entered  with  the  clerk,  in  vacation 
or  in  term,  that  an  attachment  issue  against  the  sheriff'  or 
other  officer  who  may  have  made  the  aiTest,  and  such  i\\- 
tachment  may  be  issued  accordingly.^* 

§  8.  Habeas  corpus  instead  of  attachment  when  party  in 

custody. 

If  a  party  charged  with  misconduct  bo  in  the  custody 

of  any  officer  by  virtue  of  an  execution  against  liis  body, 

or  by  virtue  of  any  process  for  any  other  contempt  or  mis- 

33  Cir.  Ct.  Rule  20.  Comp.  Laws  1915,  §§  129S7,  12988. 

84Jud.     Act,     ch.     25,     §§9,     10; 


§  10  Contempt  403 

conduct,  the  court  may  award  a  writ  of  habeas  cori)US  to 
bring  up  the  body  of  such  person  to  answer  for  such  mis- 
conduct; and,  in  cases  where  a  party  is  entitled  to  an  at- 
tachment against  any  person  without  the  special  order  of 
the  court  and  such  person  is  in  custody  as  specified,  a 
writ  of  habeas  corpus  to  bring  up  such  person  may  be 
allowed  by  any  judge  of  the  court  or  by  any  officer  au- 
thorized to  perform  the  duties  of  such  judge  in  vacation." 
Such  writ  authorizes  and  commands  the  sheriif  in  whose 
custody  such  person  is  to  remove  and  bring  him  before 
the  court  to  which  the  writ  is  returnable  and  to  detain 
him  at  the  place  where  the  court  is  sitting  until  some 
order  is  made  by  the  court  for  his  disposition.^^ 

§  9.  Bond  for  appeaxance. 

When  an  attachment  is  issued  by  the  special  order  of 
the  court,  the  court  should  direct  the  penalty,  in  which 
the  defendant  shall  give  bond  for  his  appearance  to  an- 
swer.^''' In  all  other  cases,  when  a  party  is  entitled  to  an 
attachment  without  the  special  order  of  the  court,  he 
must  make  application  to  a  judge  of  the  court  or  to  some 
officer  authorized  to  perform  the  duties  of  such  judge, 
who,  upon  due  proof  of  the  facts  and  circumstances,  will 
direct  the  penalty  in  which  the  defendant  shall  give  bond 
for  his  appearance  to  answer  the  matters  alleged  against 
liim,  indorsing  such  order  on  the  attachment.'* 

§  10.  Disposition  of  arrested  party. 

Upon  arresting  any  defendant  upon  an  attachment  to 
answer  for  any  alleged  misconduct,  it  is  the  duty  of  the 
sheriif  to  keep  him  in  his  actual  custody  and  bring  him 
personally  before  the  court  issuing  the  attachment,  and 
to  keep  and  detain  him  in  his  custody  until  tlie  court  has 

35Jiul.  Act,  ch.  5,  §§7,  8;   Comi).  37  .Tud.    Act,    ch.    5,    §10;     Comp. 

Laws  1915,  §§  12274,  12275.  Laws  1915,   §  12277. 

36Jud.    Act,    ch.    5,    §9;     Com]).  38Ju(L    Act,    ch.    5,    §11;    Comp. 

Laws  1915,  §12276.  Laws  1915,  §12278. 


404  Contempt  §  10 

made  some  order  in  the  premises,  unless  the  defendant  en- 
titles himself  to  be  discharged,  either  where  a  smn  has 
been  indorsed  on  an  attachment  issued  by  the  special 
order  of  the  court  or  where  the  penalty  in  which  the  de- 
fendant shall  give  bond  for  his  appearance  has  been 
directed  by  the  judge  or  other  officer  upon  an  attachment 
issued  without  the  special  order  of  the  court,  upon  execut- 
ing and  delivering  to  the  officer  making  the  arrest,  in  his 
name  of  office  and  to  his  assigns,  at  any  time  before  the 
return  day  of  the  writ,  a  bond  with  two  sufficient  sure- 
ties, in  the  penalty  indorsed  on  the  attachment,  with  a 
condition  that  the  defendant  will  appear  on  the  return  of 
the  attachment  and  abide  the  order  and  judgment  of  the 
court  thereon.^* 

Where  an  attachment  is  issued  by  the  special  order  of 
the  court,  a  certificate  to  that  effect  is  required  to  be  in- 
dorsed thereon  by  the  clerk  of  the  court,  and,  if  no  sum  be 
specified  in  which  the  defendant  shall  be  held  to  bail  on 
the  writ,  he  will  not  be  entitled  to  be  discharged  from 
arrest  thereon  on  executing  any  bond  or  in  any  other  man- 
ner, unless  upon  the  special  order  of  the  court  issuing  the 
attachment ; "  but,  where  an  attachment  is  issued  without 
the  special  order  of  the  court,  and  an  order  specifying 
the  sum  in  which  the  defendant  is  to  be  held  to  bail  is  not 
indorsed  thereon,  the  defendant  will  be  entitled  to  be  dis- 
charged from  arrest  thereon  on  executing  a  bond  in  the 
penalty  of  one  hundred  dollars,  with  sureties,  in  the  same 
manner  and  with  the  like  condition  as  before  specified.*^ 

§  11.  Return  of  appearance  bond. 

Upon  returning  an  attachment,  it  is  the  duty  of  the 
officer  executing  it  to  return  the  bond,  if  any,  taken  by 

39  Jud.  Act,  ch.  5,  §§  12,  13;  Comp.  «  Jud.  Act,  eh.  5,  §15;  Comp. 
Laws  1915,  §§12279,  12280.                     Laws  1915,  §12282. 

40  Jud.    Act,    ch.    5,    §14;    Comp. 
Laws  1915,  §  12281. 


§  13  Contempt  405 

him  of  the  defendant,  and  the  bond  should  be  filed  with 
the  attachment.*^ 

§  12.  Procedure  to  compel  return  of  attachment. 

It  is  the  duty  of  the  sheritf  or  other  officer  to  whom  an 
attachment  has  been  delivered  to  return  it  by  the  return 
day  specified  therein,  without  any  previous  rule  or  order 
for  that  purpose;  and,  in  case  of  default,  an  attachment 
may  be  issued  against  him  upon  being  allowed  by  a  judge 
of  the  court  or  by  an  officer  authorized  to  perfoiTu  the 
duties  of  such  judge  upon  proof  of  the  default.  In  such 
allowance,  the  cause  of  issuing  the  attachment  must  be 
stated,  and  that  the  defendant  is  not  to  be  discharged 
upon  bail  or  in  any  other  manner  but  by  order  of  the 
court.*^  The  officer  to  whom  such  attachment  is  delivered 
must  execute  it  by  arresting  and  keeping  the  defendant 
in  his  custody,  bringing  him  personally  before  the  court 
and  detaining  him  in  his  custody  until  the  order  of  the 
court.** 

§  13.  Hearing. 

When  any  defendant  arrested  upon  an  attachment  is 
brought  into  court  or  has  appeared  therein  in  response 
to  any  order  to  show  cause,  he  will  be  permitted  to  file 
affidavits  controverting  or  explaining  the  matters  stated 
in  the  affidavits  upon  which  the  attachment  was  issued 
or  order  to  show  cause  made  within  such  reasonable  time 
as  the  court  allows.  The  court  may  also  receive  any  affi- 
davits or  oral  proofs  contradictory  or  confirmatory  of  the 
answers  of  the  defendant  and,  upon  all  such  affidavits 
and  proof,  will  determine  whether  the  defendant  has  been 
guilty  of  the  misconduct  alleged.*^    The  facts  establish- 

42Jud.  Act,  eh.  5,  §16;  Comp.  Laws  1915,  §12286;  Metheany  v. 
Laws  1915,  §12283.  Kent  Circuit  Judge,  142  Mich.  628; 

43Jud.  Act,  eh.  5,  §17;  Comp.  Russell  v.  Wayne  Circuit  Judge,  136 
Laws   1915,    §  12284.  Mich.  624. 

44Jud.    Act,    eh.    5,  §18;    Comp.  The  Judicature  Act  abolishes  in- 

Laws  1915,  §  12285.  terrogatories. 

45Jud.    Act,    eh.    5,  §19;    Comp. 


406  Contempt  §  13 

iiii;-  the  charge  must  be  shown  with  reasonable  certainty 
and  not  merely  upon  information  and  belief.*^  The  ques- 
tion to  be  determined  primarily  is  whether  the  defendant 
is  guilty  of  the  misconduct  charged,  and,  it  being  deter- 
mined that  he  is,  the  inquiry  is  then  directed  to  the  ascer- 
tainment of  whether,  and  to  what  extent,  the  party  prose- 
cuting the  proceeding  has  been  injured  by  it.*'  The  in- 
jury contemplated  is  a  pecuniary  injury  of  such  a  nature 
that  it  can  be  estimated  with  reasonable  certainty.  The 
inquiry  as  to  the  extent  of  the  party's  injury  resulting 
from  the  misconduct  charged  may  be  conducted  by  the 
court  at  the  same  time  and  in  connection  with  the  in- 
vestigation of  the  defendant's  guilt,  or  may  be  post- 
poned to  a  subsequent  time,  and,  in  proper  cases,  a  refer- 
ence may  be  ordered.  While  the  proceedings  should  not 
be  conducted  with  such  undue  haste  as  to  deprive  the  ac- 
cused of  a  fair  opportunity  to  prepare  his  defense  and  will 
be  set  aside  if  they  are,**  they  should  in  no  case  be  sub- 
jected to  unreasonable  delay;  but  the  court  will  not  re- 
view the  merits  of  the  order  which  has  been  disobeyed.*® 

§  14.  Punishment. 

Punishment  for  contempts  may  be  by  fine  or  imprison- 
ment in  the  jail  of  the  county  where  the  court  is  sitting, 
or  both,  in  the  discretion  of  the  court;  but  the  fine  can  in 
no  case  exceed  the  sum  of  two  hundred  and  fifty  dollars, 
nor  the  imprisonment  thirty  days,  except  in  those  cases 
where  the  commitment  is  for  the  refusal  to  perform  an 
act  or  duty  which  is  still  within  the  power  of  the  party  to 

46Verplank  V.  Hall,  21  Mich.  469;  48  In    re    Dingley,   182   Mich.   44; 

Russell  V.  Wayne  Circuit  Judge,  136  Latimer  v.  Barmore,  81  Mich.  592; 

Mich.   624.  Smith  v.  Waalkes,  109  Mich.  16. 

47  Montgomery  v.  Muskegon  Boom-  49  People  v.  Bergen,  53  N.  Y.  404; 

ing  Co.,  104  Mich.  411;  Smith's  Ap-  Hilton    v.    Patterson,    18    Abb.    Pr. 

peal,     86    Mich.     149;     Holland     v.  (N.  Y.)   245. 
Weed,   87   Mich.   584. 


§  14  Contempt  407 

perform.^"  A  woman  is  not  exempt  from  imprisonment 
for  contempt.^^ 

Fonn  of  Order  Punishing  Ck>ntempt  in  Presence  of  the  Court 

In  the  Matter  of  A.  B. 

It  appearing  to  the  court  from  its  own  immediate  view  that  A.  B.  has 
been,  and  is,  guilty  of  contemptuous  behavior  committed  during  its  sitting 
in  the  immediate  view  and  presence  of  the  court  and  directly  tending  to 
interrupt  its  proceedings  and  to  impair  the  respect  due  to  its  authority  in 
(specify  the  misconduct),  it  is  therefore  adjudged  that  the  said  A.  B.  is 
guilty  of  a  contempt  of  this  court,  and  it  is  ordered  and  adjudged  that  the 

said  A.  B.  do  pay  to  the  people  of  the  State  of  Michigan  a  fine  of   

dollars  and  that  he  be  imprisoned  in  the  common  jail  of  the  county  of 

until  said  fine  be  paid,  not  exceeding,  however, days. 

Form  of  Order  Imposing  Punishment  for  Contempt  Not  in  Presence  of 

the  Court 
In  the  Matter  of  A.  B. 

On  reading  and  filing  proof  of  service  of  a  certified  copy  of  the  order 

herein  made  on  the day  of ,  A.  D ,  requiring  the  said 

A.  B.  to  show  cause  why  he  should  not  be  punished  as  for  a  contempt  of 
this  court  for  the  contemptuous  behavior  therein  specified,  together  with  a 
certified  copy  of  the  afl&davit  upon  which  said  order  was  founded,  and  the 
said  A.  B.  having  failed  to  show  such  cause  and  it  appearing  to  the  court 
that  the  said  A.  B.  has  been,  and  is,  guilty  of  contemptuous  behavior  di- 
rectly tending  to  interrupt  the  proceedings  of  this  court  and  to  impair 
the  respect  due  to  its  authority  in  (specify  the  misconduct),  it  is  therefore 
adjudged  that  the  said  A.  B.  is  guilty  of  a  contempt  of  this  court  and  it 
is  ordered  and  adjudged  that  he  do  pay  to  the  people  of  the  State  of  Michi- 
gan a  fine  of dollars,  and  that  he  be  imprisoned  in  the  common  jail 

of  the  county  of    until  said  fine   be  paid,   not  exceeding,   however, 

days. 

60Jud.    Act,    ch.    5,    §20;    Comp.  man    v.    Wayne    Circuit    Judge,    95 

Laws  1915,  §  12287.  Mich.  264. 

Greater    fine    cannot    be    imposed  Fine    of    $250    and    imprisonment 

in  any  case.     Ware  v.   Branch   Cir-  for   thirty   days,    imposed   on    attor- 

cuit   Judge,  75  Mich.  488,  495.  neys   who   failed   to   appear   on   day 

A  sentence  giving  respondent  the  set  for  trial  of  prosecution  for  mur- 
alternative  of  paying  a  certain  sum  der,  held  not  cruel  and  unusual  pun- 
as a  fine  within  a  specified  time,  or  ishment  in  In  re  McHugh,  152  Mich, 
being  imprisoned  for  a  stated  term  505. 

without  the  right  to  be  released  on  61  Carnahan     v.      Carnahaii,      14,'< 

payment   of  the  fine,  is  void.     Slo-  Mich.  .390. 


408  Contempt  §  15 

§  15.  Payment  to  ag^grieved  party. 

If  an  actual  loss  or  injury  has  been  suffered  by  any 
party  by  the  misconduct  alleged,  the  court,  in  addition  to 
such  other  penalty  as  is  imposed,  will  order  a  sufficient 
sum  to  be  paid  by  the  defendant  to  such  party  to  indem- 
nify him  and  to  satisfy  his  costs  and  expenses,  and,  in 
such  case,  the  payment  and  acceptance  of  such  sum  will 
be  an  absolute  bar  to  any  action  by  the  aggrieved  party 
to  recover  damages  for  such  injury  or  loss.^^  The  statute 
was  formerly  such  that  a  fine  could  not  be  imposed  in 
addition  to  the  amount  which  the  court  ordered  the  de- 
fendant to  pay  to  the  party.^^ 

§  16.  Imprisonment  until  act  performed. 

When  the  misconduct  complained  of  consists  in  the 
omission  to  perform  some  act  or  duty  which  is  yet  in  the 
power  of  the  defendant  to  perform,  he  can  be  imprisoned 
only  until  he  shall  have  performed  such  act  or  duty  and 
paid  such  fine  as  is  imposed  and  the  costs  and  expenses  of 
the  proceedings.^*  In  such  case,  the  order  and  process 
of  commitment  must  specify  the  act  or  duty  to  be  per- 
formed and  the  amount  of  the  fine  and  expenses  to  be 
paid." 

§  17.  Proceeding  in  case  defendant  does  not  appear. 

If  a  defendant  against  whom  an  attachment  has  been 
issued  and  returned  served  does  not  appear  on  the  re- 
turn day,  the  court  may  either  award  another  attach- 
ment or  may  order  the  bond  taken  on  his  arrest  to  be 
prosecuted,  or  both.^^     The  court  may  order  an  assign- 

62Jucl.    Act,    ch.    5,    §21;    Comp.  M.  E.  Co.,  184  Mich.  242,  where  fine 

Laws  1915,  §  12288.  or    other    punishment    not    imposed 

53  Haines  v.  Haines,  35  Mich.  138.  where  contempt  was  merely  technical 

54  Jud.    Act,    ch.    5,    §  22 ;    Comp.  and  party  acted  in  good  faith. 
Laws    1915,    §12289;    Carnahan    v.  65  Jud.    Act,    ch.    5,    §23;    Comp. 
Carnahan,   143   Mich.   390;    Latimer  Laws  1915,  §12290. 

V.  Barmore,  81  Mich.  592.    See  Mich-  56  Jud.    Act,    ch.    5,    §25;    Comp. 

igan   Ey.   Commission  v.   Detroit   &      Laws  1915,  §  12292. 


§  19  Contempt  409 

ment  of  the  bond  to  any  aggrieved  party,  who  may  be 
authorized  by  the  court  to  prosecute  it.  Such  party  may 
maintain  an  action  thereon  in  his  own  name,  as  assignee 
of  the  sheriff  or  other  officer  to  whom  the  bond  was  given, 
in  the  same  manner  as  in  other  actions  on  bonds  with 
condition  to  perform  covenants  other  than  the  payment 
of  money.^"'' 

§  18.  Damag-es  in  actions  upon  appearance  bonds. 

The  measure  of  damages  to  be  assessed  in  an  action 
upon  a  bond  taken  on  the  arrest  of  a  defendant  against 
whom  an  attachment  has  been  issued  is  the  extent  of  the 
loss  or  injury  sustained  by  the  aggrieved  party  by  rea- 
son of  the  misconduct  for  which  the  attachment  was  is- 
sued and  his  costs  and  expenses  in  prosecuting  the  at- 
tachment.^* 

§  19.  Who  may  prosecute  appearance  bond  and  proce- 
dure. 

If  the  court  does  not  order  an  assignment  of  the  bond 
taken  on  the  arrest,  it  should,  in  case  the  defendant  fails 
to  appear  according  to  the  condition  of  the  bond,  order 
it  to  be  prosecuted  by  the  attorney  general  or  by  the 
prosecuting  attorney  for  the  county  in  which  the  bond 
was  taken,  in  the  name  of  the  officer  who  took  the  bond.^^ 
In  such  case,  the  whole  penalty  of  the  bond  will  be  for- 
feited and  recovered;  and,  from  the  moneys  collected 
thereon,  the  court  will  order  such  sum  to  be  paid  to  the 
party  prosecuting  the  attachment  as  the  court  ordering 
the  prosecution  thinks  proper  to  satisfy  the  costs  and 
expenses  incurred  by  him  and  to  compensate  him  for 
any  injury  he  may  have  sustained  by  the  misconduct  for 
whicli  the  attachment  was  issued.     Tlie  residue  of  the 

57Jud.    Act,    ch.    5,    §26;    Conip.  69  Jud.    Act,    ch.    5,    §28;    Comp. 

Laws  1915,  §  12293.  Laws  1915,  §  12295. 

58  Jud.    Act,    ch.    5,    §  27 ;    Comp. 
Laws  1915,  §  12294. 


410  Contempt  §  19 

moneys  are  to  be  paid  into  the  treasury  of  the  county  in 
which  the  bond  was  taken,  to  the  credit  of  the  general 
fund.60 

§  20.  Actions  against  officers  for  taking  insufficient  sure- 
ties. 
If,  on  the  return  of  an  execution  issued  upon  any  judg- 
ment obtained  on  a  bond  taken  on  the  arrest  of  a  defend- 
ant, it  appears  that  the  sureties  therein  were,  at  the  time 
of  taking  them,  insufficient,  and  that  the  officer  receiv- 
ing them  had  reasonable  ground  to  doubt  their  suffi- 
ciency, he  will  be  liable  in  an  action  on  the  case  to  the 
party  aggrieved,  who  may  have  prosecuted  the  suit,  for 
the  amount  of  the  judgment  recovered  by  him  and  for 
his  costs  and  expenses  in  the  suit;  or,  if  the  suit  was 
brought  by  the  attorney  general  or  a  prosecuting  attor- 
ney, an  action  on  the  case  may  in  like  manner  be  brought 
by  them  in  the  name  of  the  people  of  this  state  for  the 
amount  of  the  judgment  so  recovered,  and  the  same  dis- 
position of  the  moneys  collected  in  such  action  against 
the  officer  is  required  to  be  made  as  in  the  case  of  moneys 
collected  upon  the  bond.®^ 

§  21.  Duty  of  officer  as  to  custody. 

Whenever  an  officer  is  required  to  keep  any  person 
arrested  upon  an  attachment  in  actual  custody  and  to 
bring  him  personally  before  the  court,  the  inability,  from 
sickness  or  otherwise,  of  such  person  to  attend  the  court 
personally  will  be  a  sufficient  excuse  for  not  bringing 
him  before  the  court;  and  no  officer  is  required,  in  any 
case,  to  confine  a  person  arrested  upon  an  attachment 
to  answer  for  misconduct  in  prison,  or  otherwise  to  re- 
strain him  of  his  personal  liberty,  except  so  far  as  is 

eojud.    Act,    ch.    5,    S29;    Coinp.  61Jud.    Aet,    ch.    5,    §30;    Comp. 

Laws  1915,  §  12296.  Laws  1915,  §  12297. 


§  22  Contempt  411 

necessary  to  secure  his  personal  attendance.^^  When  a 
defendant  is  in  custody  by  virtue  of  an  attachment  for 
the  non-payment  of  costs,  he  will  be  entitled  to  the  liberty 
of  the  jail  limits,  which  are  co-extensive  with  the  limits 
of  the  county,  upon  executing  a  bond  to  the  sheriff  and 
his  assigns,  with  one  or  more  sufficient  sureties  who  are 
inhabitants  and  householders  of  the  county,  in  a  penalty 
not  less  than  double  the  amount  directed  to  be  levied  by 
the  attachment.^' 

§  22.  Review  of  judgment. 

The  statute  is  mandatoiy  that  no  court  or  officer,  on 
the  return  of  any  habeas  corpus  or  certiorari,  shall  have 
power  to  inquire  into  the  justice  or  propriety  of  any 
commitment  for  contempt  made  by  any  court,  officer  or 
body  according  to  law  and  charged  in  the  commitment; 
but  the  constitution  of  the  state  vests  in  the  supreme 
court  a  general  superintending  control  over  all  inferior 
courts,  with  power  to  issue  writs  of  error,  habeas  corpus, 
mandamus,  quo  warranto  and  other  original  and  reme- 
dial writs  and  to  hear  and  determine  the  same,  and,  un- 
der this  provision  of  the  constitution,  that  court  has 
authority  to  inquire  into  the  justice  or  propriety  of  pro- 
ceedings in  contempt,  whether  before  or  after  commit- 
ment, but  only  so  far  as  to  ascertain  whether  the  court 
or  officer  has  jurisdiction  and  is  proceeding  according 
to  law.  If  the  court  or  officer  has  jurisdiction  and  is 
proceeding  according  to  law,  the  supreme  court  can  go 
no  further.  Commitments  for  contempts  cannot  be  im- 
peached for  mere  irregularity.  The  attack  upon  a  judg- 
ment for  contempt  can  go  no  further  than  to  the  power 
of  the  court  to  act  in  the  given  case.  But  the  question 
of  jurisdiction  necessarily  involves  an  inquiry  whether 
the  conduct  alleged  was  in  fact  a  contempt  of  the  court 

62Jud.    Act,    ch.    5,    §31;    Comp.  63 . J  ml.    Act,    ch.    25,    §§22,    23; 

Laws  1915,  §12298.  Comp.  Laws  1915,  §§12289,  12290. 


412  Contempt  §  22 

and  committed  under  circumstances  which  authorize  the 
court  to  proceed  to  punishment  therefor;  and  it  also  in- 
volves the  question  whether  the  court  is  proceeding  in 
the  manner  prescribed  by  law.^*  But  it  is  not  for  an  ap- 
pellate court  to  determine  the  amount  of  the  punishment 
if  it  is  not  in  excess  of  that  provided  by  law,  and  it  will 
not  review  the  evidence  to  determine  whether  the  pun- 
ishment should  have  been  less.®^ 

An  order  refusing  a  petition  for  the  punishment  of  a 
sheriif  for  contempt  in  omitting  the  performance  of  a 
duty  is  not  reviewable  by  the  supreme  court  on  certiorari, 
as  such  order  is  not  regarded  as  a  final  judgment  upon 
any  right  which  the  relator  had  to  proceed  for  himself.^® 
An  order  committing  a  defendant  for  contempt  in  re- 
fusing to  pay  temporary  alimony  is  appealable,^'  but  it 
has  been  held  that  the  regularity  of  such  an  order  will 
not  be  reviewed  on  an  application  for  a  habeas  corpus, 
if  it  is  regular  on  its  face.^^  So,  an  order  adjudging  a 
defendant  guilty  of  contempt  in  violating  an  injunction 
and  awarding  a  sum  of  money  to  the  opposite  party  is 
final  and  appealable.^*  So,  also,  is  an  order  adjudging 
one  who  has  been  illegally  appointed  a  receiver  in  a 
chancery  case  guilty  of  contempt  in  disobeying  an  order 
of  the  court  requiring  him  to  restore  to  the  defendants 
in  the  case  all  things  that  have  come  to  his  hands  as  re- 
ceiver.'" 

The  writ  of  prohibition  is  a  proper  remedy  to  deter- 
mine the  jurisdiction  of  the  court  to  punish  for  contempt 

64  In  re  Wood,  82  Mich.  75;  Scott  67  Ross    v.    Ross,    47    Mich.    185; 

V.  Chambers,  62  Mich.  532;    Turner  Haines  v.  Haines,  35  Mich.  138. 

V.   Smith,  90   Mich.   309;    Bagley  v.  68  In  re  Bissell,  40  Mich.  63. 

Scudder,    66    Mich.    97;     Swett    v.  69  People    v.    Simonson,    9    Mich. 

Thorkildsen,  115  Mich.  314.  492;    Romeyn    v.    Caplis,    17    Mich. 

66  In  re  McHugh,  152  Mich.  505.  449. 

66  Schwab  V.  Coats,  44  Mich.  463;  70  People  v.  Jones,  33  Mich.  303. 
Rasch  V.   Sheppard,   105  Mich.   667; 
Montgomery   v.   Muskegon   Booming 
Co.,  104  Mich.  411. 


Continuances  413 

where  the  accused  makes  no  attack  upon  the  form  of  the 
proceedings  or  the  sufficiency  of  the  papers,  but  denies 
that  the  court  had  any  jurisdiction  of  the  proceedings.'^ 
Mandamus  or  certiorari  will  not  be  granted  prior  to  a 
final  determination  of  the  proceedings/^  nor  unless  the 
proceedings  were  without  jurisdiction  or  otherwise  vio- 
lated the  substantial  rights  of  the  accused.'^ 

§  23.  Effect  of  conunitinent  on  rights  of  party. 

As  an  effect  of  the  contempt,  the  guilty  party  cannot, 
in  general,  apply  to  the  court  for  a  favor  while  he  is  in 
contempt.  He  must  purge  his  contempt,  by  complying 
with  the  former  order  of  the  court,  and  until  he  does 
this,  the  court  will  not  grant  an  application  in  his  favor 
which  is  not  a  matter  of  strict  right.'''*  Parties  in  con- 
tempt are,  however,  sometimes  allowed  to  make  appli- 
cations to  the  court  for  favors,  notwithstanding  their 
contempt;  but  in  such  cases  the  application  will  only  be 
granted  on  condition  of  purging  the  contempt,  by  com- 
plying with  the  former  order  of  the  court. 

CONTINUANCES 

§  1.  Historical. 

§  2.  Source  of  power. 

§  3.  How  effected. 

§  4.  Necessity  for  writing  and  filing  of  motion. 

§  5.  Affidavit  and  grounds. 

§  6.  Affidavits  to  oppose  motion. 

§  7.  Time  for  motion. 

§  8.  Determination  of  motion  and  order. 

§  9.  Eights  of  parties  when  continuance  granted  upon  terms. 

§  10.  Continuances  by  consent. 

Cross-Eeferences:  Garnishment  (continuance  of  garnishment  proceed- 
ings); Mandamus;  E^ror,  Writ  of  (review  by  writ  of  error). 

71  Nichols    V.    Judge    of    Superior      Judge,  172  ^Tich.  660. 

Court,  130  Mich.  187.  74  Peltier  v.  Peltier,  Har.  19;  Mc- 

72  Toepel  V.  Wayne  Circuit  Judge,  Clung  v.  McClung,  40  Mich.  493. 
138  Mich.  302;  In  re  Smith,  144  See  Atchison,  T.  &  S.  F.  R.  Co.  v. 
Mich.  39.  Wayne  Circuit  Judge,  60  Mich.  232. 

73  Lake      v.      Houghton      Circuit 


414  Continuances  §  1 

§  1.  Historical. 

By  reason  of  the  modifications  in  the  early  common 
law  practice  which  the  evolution  of  the  modern  proce- 
dure has  effected,  the  word,  "continuance,"  is  under- 
stood in  a  slig-htly  different  sense  from  that  which  for- 
merly attached  to  it.  Under  the  ancient  practice,  as  has 
been  already  observed,  the  pleading  and  other  steps  in 
the  progress  of  a  cause  took  place  in  the  actual  presence 
in  court  of  the  parties,  instead  of,  as  at  the  present  time, 
being  taken,  although  with  the  theoretical,  yet  mostly 
without  the  actual,  presence  of  the  parties  in  court,  either 
in  person  or  by  attorney.  Even  under  the  former  prac- 
tice, however,  the  parties  were  not  incessantly  in  court 
from  the  beginning  to  the  termination  of  a  suit,  but  for 
certain  purposes  the  law  allowed  the  proceedings  to  be 
adjourned  or  continued  over  from  one  term  to  another 
or  from  one  day  to  another  in  the  same  term.  When  this 
happened,  an  entry  of  such  adjournment  to  a  given  day 
and  of  its  cause  was  made  on  the  record,  and  by  that 
entry  the  parties  were  also  appointed  to  re-appear  at 
the  given  day  in  court.  Such  adjournment  was  called 
a  ** continuance."  Thus,  the  award  of  a  mode  of  trial 
on  an  issue  of  fact  and  also  the  adjournment  of  the  par- 
ties to  a  certain  day  to  hear  the  decision  of  the  court 
on  an  issue  of  law  were  each  of  them  continuances,  and 
were  entered  as  such  on  the  roll;  and,  if  any  interval  or 
interruption  took  place  without  such  an  adjournment 
duly  obtained  and  entered,  the  chasm  thus  occasioned 
in  the  progress  of  the  suit  was  called  a  "discontinuance," 
and  the  cause  was  considered  out  of  court  and  was  not 
allowed  afterwards  to  proceed.^  As  the  parties  now  are 
generally  not  actually  present  in  court  (although  the- 
oretically supposed  to  be)  except  only  at  the  hearing  of 
the  cause,  the  term,  "continuance,"  has  come  to  be  ap- 
plied merely  to  tlio  post])()nemont  of  the  hearing  and  to 

1  Stei.li.  PI.  60. 


§  5  Continuances  415 

signify  such  postponement.  Adjournments  of  the  court 
from  day  to  day  during  the  progress  of  a  trial  are  not 
continuances  that  must  be  stated  in  the  record.^ 

§  2.  Source  of  power. 

The  power  to  continue  a  cause  is  not  one  that  must  be 
expressly  conferred,  but  is  inherent  in  every  court.  It 
is  incident  to  the  power  to  hear  and  detemiine.* 

§  3.  How  effected. 

A  continuance  may  be  effected  either  (1)  by  the  order 
of  the  court  entered  on  special  motion,  or  (2)  on  the 
stipulation  of  the  parties,  or  (3)  by  the  fact  that  at  the 
end  of  the  tenn  the  cause  remains  undisposed  of,  in  which 
case  no  formal  order  of  continuance  is  required  to  be 
entered.  Courts  rarely  order  causes  continued  against 
the  dissent  of  all  the  litigants,  but  there  is  no  doubt  that 
the  jjower  exists. 

§  4.  Necessity  for  writing-  and  filing-  of  motion. 

Motions  for  continuance  are  expressly  excepted  from 
the  rule  requiring  special  motions  to  be  in  writing,  signed 
by  the  attorney  or  counsel  of  the  party  in  whose  behalf 
they  are  made  and  filed  in  the  office  of  the  clerk  of  the 
court.* 

§  5.  Affidavit  and  grounds. 

A  motion  for  a  continuance  must  be  supported  by  af- 
fidavit showing  the  ground  upon  which  it  is  based.  The 
ground  most  frequently  urged  in  practice  is  the  absence 
of  a  material  witness.^  When  this  ground  is  relied  upon 
by  a  party,  the  affidavit  should  show  (1)  that  the  absent 
witness  is  a  material  witness,  witiiout  whose  testimony 

2  The  Milwaukee  v.  Hale,  1  Dong.  *  Cir.  Ct.  Rule  15,  §  1. 

;{06.  5  See   Roney   v.  Healy,   170   Mioh. 

3  Caswell  V.  Ward,  2  Doug.  374.        46. 


416  Continuances  §  5 

the  party  cannot  safely  proceed  to  trial,^  (2)  that  the 
party  has  used  due  diligence  to  procure  the  presence  of 
such  witness  at  the  trial'  and  (3)  that  the  presence 
of  such  witness  can  be  secured  for  the  trial  at  the  time  to 
which  it  is  sought  to  have  it  postponed.^  And,  on  a 
second  application  by  a  party  for  the  continuance  of  a 
cause,  the  party  so  applying  is  required  to  state,  in  ad- 
dition to  the  usual  requisites,  the  facts  which  he  expects 
to  prove  by  the  absent  witness  and,  with  particularity, 
the  diligence  he  has  used  to  procure  his  attendance;  and, 
in  case  it  is  admitted  by  the  opposite  party  that  the  wit- 
ness named  would,  if  placed  on  the  stand,  testify  as 
stated  in  such  affidavit,  the  motion  for  a  continuance 
will  be  denied,  unless  the  court,  for  the  furtherance  of 
justice,  deems  a  continuance  necessary.® 

The  fact  that  the  absent  witness  lives  in  another  state 
so  that  he  cannot  be  subpoenaed  is  material.^"  A  counter- 
affidavit  showing  that  the  alleged  absent  witness  is  the 
husband  of  plaintiff  who  does  not  consent  to  his  giving 
testimony  against  her  is  not  ground  for  denying  the  mo- 
tion where  it  is  not  shown  but  that  the  husband  is  com- 
petent as  coming  within  exceptions  in  the  statute  as  to  his 
competency.^^ 

6  If  witness  is  incompetent  ex-  evidence  is  in,  except  the  testimony 
cept  as  to  facts  admitted,  a  continu-  of  defendant  himself,  and  his  attor- 
ance  should  not  be  granted.  Meyer  ney  was  not  sure  defendant  would 
V.  Knott,  137  Mich.  714.  be   present   the   next   day.     Bennett 

7  In   re  MeNamara's  Estate,   154  v.  Denton,  194  Mich.  610. 

Mich.   671,  675.  9  Cir.  Ct.  Rule  41,  §1;  McNaugh- 

When  a  party  neglects  to  subpoena  ton  v.  Evert,  116  Mich.  141. 

a  witness,  but  relies  upon  his  prom-  However,  such  an  admission  as  to 

ise  to  attend,  the  party  has  not  used  what   the  witness  would  testify  to, 

due  diligence  and  is  not  entitled  to  as  ground  for  denial  of  the  motion, 

a  continuance  on  account  of  the  ab-  applies  only  to  a  second  motion  for 

sence  of  such  witness.     See  Leach  v.  a  continuance.     Gerkin  v.  Brown  & 

Detroit  Electric  Ry.,  125  Mich.  373.  Sehler  Co.,  177  Mich.  45,  52. 

8  Rex  v.  D'Eon,  3  Burrows  1513,  lODering  v.  Detroit  United  Ry., 
1  W.  Bl.  510.  193  Mich.  238. 

It  is  proper  to  refuse  a  continu-  H  Snyder      v.      Berrien      Circuit 

ance  until  the  next  day  where  all  the      Judge,  176  Mich.  546. 


§  5  Continuances  417 

There  are  also  other  grounds  upon  which  continuances 
are  occasionally  granted,  such  as  the  inability,  because  of 
serious  illness,  of  the  party's  attorney  to  attend  the 
trial,^'^  but  not  the  absence  of  a  party's  attorney  on  pro- 
fessional business  ^'  or  his  engagement  before  a  referee." 
The  jjublication  of  a  libel  immediately  preceding  the 
term  with  intent  to  prejudice  the  jury  has  been  held  a 
good  ground  for  a  continuance."  So,  also,  the  arrest  of 
the  party  when  on  the  way  to  the  trial.^®  So,  also,  the 
absence  of  a  judicial  document  material  to  the  party, 
without  which  he  cannot  safely  go  to  trial.^'^  So,  also, 
an  amendment  of  the  pleadings  whereby  the  issue  is 
materially  changed,  is  ground,^'  although  it  is  otherwise 
where  the  amendment  merely  adds  a  formal  allegation  ^' 
or  conforms  the  pleadings  to  the  proof  where  no  injury 
is  shown. ^'^ 

Form  of  Affidavit  in  Support  of  Motion  for  Continuance 

(Title  of  court  and  cause.) 

County  of ,  ss. 

C.  D.,  the  above-named  defendant,  being  duly  sworn,  deposes  and  says 
that  he  has  fully  and  fairly  stated  the  facts  in  this  cause  to  K.  L.,  his 

counsel  therein,  who  resides  at ;  that  he  has  a  good  and  substantial 

defense  upon  the  merits  thereof,  as  he  is  advised  by  his  said  counsel  upon 
such  statement  made  as  aforesaid  and  verily  believes;  that  he  has  also  fully 

12  Myers  v.  Trice,  86  Va.  835.  Washington  Ins.  Co.,  79  Mich.  187 

13  Jackson    v.    Wakeman,    2    Cow.  Lester  v.  Thompson,  91  Mich.  245 
(N.  Y.)    578.  Leonard   v.   Leahy,   169   Mich.  406 

14  Ward  V.  Euckman,  23  How.  Pr.  Gerkin  v.  Brown  &  Sehler  Co.,  177 
(N.  Y.)   330.  Mich.  45,  4  N.   C.  C.  A.  254;   Lar- 

ISGrah.   Prac.    286,   287;    Rex   v.  son  v.  Feeney,  196  Mich.  1;  Ander- 

Gray,    1    Burrows    510;     Coster    v.  son  v.  Ann  Arbor  R.  Co.,  187  Mich. 

Merest,  7  Moore  87,  3  Brod.  &  B.  211.     See   also  Wellman   v.   O'Con- 

272.  nor-Martin     Co.,     178     Mich.     682; 

16  Solomon  v.  Underbill,  1  Camp.  Paskvan  v.  Allouez  Min.  Co.,  185 
229.  Mich.  329. 

17  Mackenzie  v.  Hudson,  1  Dowl.  19  Milliken  v.  City  of  St.  Clair, 
&  R.  159.  136  Mich.  250. 

1*  Ruscyk  V.  Detroit  United   Ry.,  20  Crane   Lumber   Co.   v.   Bellows, 

180  Mich.  399;  Jennings  v.  Sheldon,       116  Mich.  304. 
53  Mich.  431 ;  Coryeon  v.  Providence- 
1  Abl)ott— 27 


418  COXTINUANCES  §  5 

and  fairly  disclosed  to  liis  said  counsel  the  facts  which  he  expects  and 
believes  he  will  be  able  to  prove  by  W.  S.,  a  witness  for  this  deponent  in 
said  cause,  and  that  the  said  W.  S.  is  a  material  witness  for  this  deponent 
therein,  as  he  is  advised  by  his  said  counsel,  upon  such  statement  made  as 
aforesaid  and  verily  believes;  and  that  he  cannot  safely  proceed  to  the 
trial  of  said  cause  without  the  testimony  of  said  W.  S.,  as  this  deponent  is 
also  advised  by  his  said  counsel  upon  such  statement  made  as  aforesaid  and 
verily  believes. 

Deponent  further  says  that  (here  state  fully  the  diligence  used  to  discover 
the  witness  and  to  procure  his  attendance,  and  the  cause  of  his  non-attend- 
ance, if  known ;  and,  on  a  second  application  for  a  continuance,  the  party 
must  state  the  facts  wliich  he  expects  to  prove  by  the  absent  witness  and, 
with  particularity,  the  dUigenee  which  he  has  used  to  procure  his  attend- 
ance.) 

And  this  deponent  further  says  that  he  expects  and  believes  that  he  will 

be  able  to  secure  the  attendance  of  said  witness  at  the term  of  this 

court,  or  his  testimony  by  deposition;  and  that  this  application  for  a 
continuance  is  not  made  for  the  purpose  of  delay  merely,  but  for  the  pur- 
pose of  obtaining  a  fair  and  impartial  trial  upon  the  merits. 

Subscribed,  etc.  C.  D. 

§  6.  Affidavits  to  oppose  motion. 

Counter  affidavits  may  be  read  in  opposition  to  a  mo- 
tion for  a  continuance,  but,  unless  they  are  such  as  to 
arouse  a  suspicion  that  the  motion  is  made  for  the  mere 
purpose  of  delay,  the  continuance  will  be  granted  upon 
the  ordinary  affidavit.^^ 

§  7.  Time  for  motion. 

A  motion  for  a  continuance  should  be  made,  if  possible, 
on  the  first  day  of  the  term.  If  made  after  the  first  day, 
it  will  not  be  heard  unless  a  sufficient  excuse  be  shown  for 
the  delay.^^ 

§  8.  Determination  of  motion  and  order. 

The  disposition  of  a  motion  for  the  continuance  of  a 
cause  is  a  matter  which  lies  within  the  discretionary- 
power  of  the  court,  whose  action  in  that  respect  will  not 

21  Ogden  v.  Payne,  5  Cow.  (N.  Y.)  Naughton  v.  Evert,  116  Mich.  141, 

15;  Pulver  v.  Hiserodt,  3  How.  Pr.  143. 

(N.   Y.)    59;    Hooker   v.   Rogers,    6  22  Cir.  Ct.  Eule  41,  §  1 ;  Schurtz  v. 

Cow.  (N.  Y.)  577.    "It  is  not  usual  Kelly,  119  Mich.  383. 
to  permit  a  counter  showing."    Mc- 


§  9  Continuances  419 

be  reviewed  unless  in  case  of  manifest  abusc.^^  The  ex- 
ercise of  discretion  will  be  more  closely  scrutinized,  how- 
ever, where  a  continuance  has  been  refused  than  where 
it  has  been  granted,*^*  and  the  cases  are  rare  in  which 
the  granting  of  a  continuance  has  been  held  to  constitute 
an  abuse  of  discretion. 

Within  these  limits,  also  lies  the  matter  of  imposing 
terms  upon  granting  a  continuance.  As  a  general  rule, 
the  court  may  impose  such  terms  as,  under  the  circum- 
stances, are  just  and  reasonable ;  ^^  but,  in  some  cases, 
it  would  be  an  abuse  of  discretion  to  impose  terms,  while 
in  others  it  would  be  an  abuse  not  to  impose  them. 

A  postponement  of  a  few  days  instead  of  over  the  term 
has  been  held  an  abuse  of  discretion  where  sufficient  time 
was  not  granted  to  meet  the  amendment  of  the  pleading 
with  proof.^^ 

Form  of  Order  for  Continuance 
(Title  of  court  and  cause.) 

'On  reading  and  filing  afiidavit,  and  on  motion  of  K.  L.,  attorney  for  de- 
fendant, it  is  ordered  by  the  court  now  here  that  this  cause  be,  and  it 
hereby  is,  continued  to  the  next  term  of  this  court  for  trial,  upon  condition 
that  the  said  defendant  pay  to  the  said  plaintiff  his  costs  of  preparing  for 
the  trial  thereof  at  the  present  term  of  this  court,  on  taxation  thereof,  in- 
cluding an  attorney  fee  of dollars. 

§9.  Rights  of  parties  when  continuance  granted  upon 
terms. 

If  a  continuance  be  granted  on  condition  of  the  pay- 
ment of  costs,  which,  in  practice,  is  the  usual  condition, 

23  McNaughton  v.  Evert,  116  Mich.  Christopherson  v.  Metropolitan  Life 

141;  Eoney  v.  Healy,  170  Mich.  46,  Ins.     Co.,     165    Mich.    793     (Judge 

56;   Winldcmeir  v.  Daiber,  92  Mich.  Moore   dissenting   in   opinion). 

621 ;    Jenning  v.   Sheldon,   53   Mich.  24  For    illustration    of    refusal    of 

431;    Bussey    v.    Bussey,    71    Mich.  continuance   as  reversible  error,  see 

507;   Ogden  v.  Gibbons,  5  N.  J.  L.  Bering  v.  Detroit  United   Ey.,   193 

611.  Mich.  238. 

Discretion  in  refusing  continuance  26  McDonald    v.    Weir,    76    Mich, 

to  enable  defendant  to  perfect  cer-  243. 

tification  of  depositions  of  nonresi-  26  Gerkin  v.  Brown  &  Sehler  Co., 

dents     held    properly    exercised    in  177  Mich.  45,  4  N.  C.  C.  A.  254. 


420  Continuances  §  9 

the  party  on  whom  such  payment  is  imposed  is  not  com- 
pelled absolutely  to  accept  the  continuance  on  such  terms, 
but  may,  if  he  prefer,  rather  than  to  pay  the  costs,  waive 
the  continuance  altogether.'^"''  But  he  should  make  his 
waiver  immediately  after  the  continuance  is  granted; 
otherwise  he  will  be  deemed  to  have  accepted  it  upon 
the  terms  imposed  and  will  become  subject  absolutely  to 
compliance  with  them.^*  In  such  case,  the  party  in 
whose  favor  costs  are  granted  on  the  continuance  of  a 
case  may,  on  the  refusal  of  the  opposite  party  to  pay 
them,  move  either  to  vacate  the  order  granting  the  con- 
tinuance or  for  an  attachment  to  compel  the  payment.'^® 
When  a  continuance  is  granted  on  the  payment  of  costs, 
such  costs  may  be  taxed  summarily  by  the  court,  and,  on 
being  taxed,  must  be  paid  on  demand  of  the  party,  his 
agent  or  attorney;  and,  if  not  so  paid,  on  affidavit  of  the 
fact,  the  continuance  may  be  vacated  or  the  court  may 
grant  an  attachment  for  the  costs  with  the  accruing 
costs.^" 

§  10.  Continuances  by  consent. 

Causes  are  often  continued  by  stipulation  between  the 
parties  or  their  attorneys,  as  well  as  upon  motion.  When 
this  is  done,  the  stipulation,  if  not  made  in  open  court, 
should  be  in  writing. ^^  It  may  provide  that  the  con- 
tinuance be  without  costs  to  either  party,  or  that  it  be 
upon  the  payment  of  costs  by  one  party  or  the  other 
or  upon  such  other  terms  and  conditions  as  the  parties 
agree  upon. 

Form  of  Stipulation  for  a  Continuance 

(Title  of  court  and  cause.) 
It  is  hereby  stipulated  and  agreed  by  and  between  the  above-named  par- 

27  People  V.  Wayne  Circuit  Judge,  29  Barney  v.  Love,  101  Mich.  543. 
40  Mich.  244.  30  Cir.  Ct.  Rule  41,  §  2. 

28  Barney  v.  Love,  101  Mich.  543.  31  Cir.  Ct.  Rule  4. 


Convenience  of  Witnesses  421 

ties,  by  their  respective  attorneys,  that  this  cause  be,  and  the  same  hereby 
is,  continued  until  the  next  term  of  this  court. 
Dated,  etc. 

J.  K., 
Attorney   for  Plaintiff. 
K.  L., 
Attorney  for  Defendant. 

CONTRACTS 

Pleading  contracts  (see  Pleading)  is  somewhat 
changed  by  the  new  rules  of  court  as  to  pleading  per- 
formance of  conditions  precedent  (Cir.  Ct.  Rule  21,  §  5, 
and  see  Pleading)  and  in  general  by  the  Judicature  Act 
simplifying  pleadings.  Actions  must  be  brought  there- 
on within  the  statutory  limitation  (see  Limitation  of 
Actions),  unless  there  is  a  valid  provision  in  the  con- 
tract itself  fixing  a  different  period  of  limitation  (see 
Limitation  of  Actions).  Joinder  of  counts  (see  Joinder 
an*d  Splitting  of  Causes  of  Action)  is  now  more  liberally 
authorized,  due  to  the  Judicature  Act.  The  form  of 
action  on  contracts  is  assumpsit  (see  Actions;  Assump- 
sit). Attachment  is  authorized  in  certain  cases  although 
the  debt  is  not  due  (see  Attachment),  and  the  same  is 
true  in  case  of  garnishment  (see  Garnishment).  Agree- 
ments as  to  proceedings  in  a  cause  must  be  in  writing 
(see  Agreements,  etc.)  As  to  declaration  of  rights  aris- 
ing under  contracts,  see  Judgments. 

CONTRADICTORY  STATEMENTS 

See  Witnesses. 

CONTRIBUTION 

See  Executions. 

CONVENIENCE  OF  WITNESSES 

See  Change  of  Venue. 


422  Conversion 

CONVERSION 

See  Trover. 

CONVICTION 

See  Witnesses  (cross-examination  as  to). 

CORONERS 

At  the  general  election  in  every  organized  county  in 
the  state,  two  coroners  are  elected  for  the  term  of  two 
years.  They  are  required  to  give  bond  to  the  people  of 
the  state  in  a  penal  sum,  and  with  sureties,  to  be  ap- 
proved by  the  proper  authority.  The  condition  of  the 
bond  is  in  substance  the  same  as  that  of  the  sheriff's 
bond,  varying  only  in  the  description  of  the  office.^ 

When  there  is  no  sheriff  or  under  sheriff  in  the  county, 
the  judge  of  the  circuit  court  should  designate  one  of 
the  coroners  to  perform  the  duties  of  sheriff.  The  cor- 
oner so  designated  thereupon  becomes  vested  with  the 
same  powers,  and  is  liable  in  the  same  manner,  as  a 
sheriff,  until  a  sheriff  is  elected  and  qualified,  and  has 
the  custody  and  control  of  the  jail  and  the  prisoners 
therein.  If  the  sheriff,  for  any  cause,  is  committed  to  the 
jail,  the  coroner  living  nearest  the  jail  is  keeper  thereof 
during  the  time  the  sheriff  is  a  prisoner  therein.^ 

If  a  sheriff  is  interested  in  any  suit,  any  coroner  with- 
in his  county  may  serve  and  execute  any  order,  process 
or  any  other  paper  in  the  cause,  and  has  the  same  powers 
and  is  subject  to  the  same  liabilities  as  sheriffs  in  sim- 
ilar cases.* 

For  all  services  rendered  by  them,  coroners  are  en- 
titled to  the  same  fees  as  are  allowed  by  law  to  sheriffs 
for  similar  services. 

IHow.     Stat.     (2nd    ed.)     1252;  1252,     1297;      Comp.     Laws     1915, 

Comp.    Laws    1915,    §2470.      As   to  §§2470,2512. 

■who  shall  approve  the  bonds  required  2  How.     Stat.     (2nd     ed.)     1253; 

to  be  furnished   by  the  coroners  of  Comp.  Laws  1915,  §  2471. 

any  county,  see  How.  Stat.  (2nd  ed.)  3  See  Sheriffs. 


Corporations  423 

CORPORATIONS 

Cross-Beferences:  Stockholders;  Confession  of  Jiidgment;  Garnish- 
ment; Judges  (effect  of  judge  being  stockholder  in)  ;  Mandamus. 

Scattered  through  the  Judicature  Act  and  the  rules  of 
court  are  many  special  provisions  relating  to  the  proce- 
dure where  a  corporation  is  involved  or  is  a  party  to  an 
action.  So  there  are  many  provisions  specially  applica- 
ble to  foreign  corporations.  For  such  injuries  as  cor- 
porate bodies  are  in  law  capable  of  sustaining,  they  are 
entitled  to  the  same  remedies  by  action  as  natural  per- 
sons. This  right  is  not  only  conferred  by  the  constitu- 
tion upon  corporations  created  under  the  laws  of  this 
state,  but  also  upon  foreign  corporations  created  by  the 
laws  of  any  other  state  or  country,  subject  to  certain  re- 
strictions.^ Corporations  cannot  sue  or  defend  otherwise 
than  by  attorney,  which  attorney  at  common  law  must 
have  been  appointed  under  their  common  seal.  In  this 
state,  however,  an  attorney  may  be  appointed  by  parol  as 
in  ordinary  cases.*^ 

It  is  not  within  the  scope  of  this  work  to  consider  in 
detail  when  stockholders  may  sue  in  behalf  of  the  cor- 
poration, when  the  corporation  is  a  necessary  defendant, 
etc.,  but  reference  should  be  made  to  standard  works  on 
the  law  of  corporations.^ 

Actions  by  or  against  corporations  are  commenced  in 
the  same  manner  as  in  case  of  actions  by  or  against 
natural  persons,  i.  e.,  by  summons,  capias,  declaration  or 
attachment.*  There  are,  however,  particular  provisions 
governing  corporations  as  to  who  may  be  served  with 
process.^ 

In  regard  to  pleading,  in  actions  by  or  against  any 
corporation,  foreign  or  domestic,  it  is  not  necessary  to 

1  Const.  Art.  XII,  sec.  2.  4  See     Commencement     of     Ac- 

2  City    of    Detroit    v.    Jackson,    1      tions;  Attachment,  §  4. 

Doug.  106.  6  See     Commencement     of     Ac- 

3  See  Fletcher 's  Cyc.  Corp.  TIONS,  I. 


424  Corporations 

recite  in  the  declaration  the  act  or  acts  of  incorporation, 
or  the  proceedings  by  which  such  corporation  was 
created,  or  to  set  forth  the  substance  thereof,  but  it  shall 
be  sufficient  to  aver  that  such  plaintiff  or  defendant  ''is 
a  corporation  organized  and  existing,  under,  and  by 
virtue  of  the  laws  of  the  state,  or  country,  naming  it, 
where  such  plaintiff  or  defendant  was  incorporated."® 
Under  an  earlier  statute,  it  was  held  that  the  general 
allegation  that  the  plaintiff  is  a  corporation  under  the 
laws  of  the  state,  was  a  sufficient  averment  of  corporate 
existence.'  In  suits  brought  by  or  against  any  corpora- 
tion, foreign  or  domestic,  it  shall  not  be  necessary  to 
prove  on  the  trial  of  the  cause,  the  existence  of  such  cor- 
poration, unless  the  defendant  shall  have  denied  the  same 
under  oath  in  his  plea  or  answ^er.* 

As  to  proving  incorporation,  the  Judicature  Act  pro- 
vides that  "in  any  suit  or  proceeding,  civil  or  criminal 
hereafter  instituted  in  any  of  the  courts  of  this  state, 
wherein  it  shall  become  material  or  necessary  to  prove 
the  incorporation  of  any  company  or  corporation,  or  the 
existence  of  any  joint  stock  company  or  association, 
whether  the  same  be  a  foreign  or  domestic  coiiDoration, 
company,  or  association,  evidence  that  such  corporation, 
company,  or  association  is  doing  business  under  a  cer- 
tain name  shall  be  prima  facie  proof  of  its  due  incorpora- 
tion or  existence  pursuant  to  law,  and  of  its  name. ' '  ® 

6  Jud.  Act,  ch.  14,  §7;  Comp.  prima  facie  evidence  of  its  due  in- 
Laws  1915,  §  12459.  corporation.      Imperial    Curtain    Co. 

7  Palmiter  v.  Pere  Marquette  Lum-  v.  Jacob,  163  Mich.  72.  In  this  case 
l)er  Co.,  31  Mich.  183.  the  court  said:    "The  statutes  with 

8  Jud.  Act,  ch.  14,  §8;  Comp.  reference  to  foreign  corporations 
Laws  1915,  §  12460.  were  not  made  merely  for  the  pur- 

9  Jud.  Act,  ch.  17,  §47;  Comp.  pose  of  preventing  foreign  corpora- 
Laws  1915,  §  12535.  tions  from  coming  into  Michigan  and 

This  section  applies  equally  to  for-  making    contracts    here,    but    were 

eign  and  domestic  corporations,  and  passed  principally  for  the  purpose  of 

the    fact    that    a   concern    is    doing  preventing  foreign  corporations  from 

business  under  a  corporate  name  is  carrying   on    their    business    in    this 


COKPORATIONS  425 

Executions  against  corporations,  when  levied  upon  any 
corporate  property,  are  levied  in  the  same  manner  as 
other  executions  are  levied,  except  in  cases  otherwise 
provided  by  law,^°  as  in  case  of  levy  on  corporate  shares." 

Information  in  the  nature  of  a  quo  warranto  against 
any  corporate  body  is  expressly  provided  for  by  statute,^^ 
as  is  the  voluntary  dissolution  of  corporations  and  the 
winding  up  of  corporations  whose  terms  have  expired. ^^ 

Ejectment  against  a  domestic  corporation  after  the  ex- 
piration of  its  charter  is  expressly  provided  for  by  the 
Judicature  Act.^* 

A  foreign  corporation  created  by  the  laws  of  any  other 
state  or  country,  may  prosecute  in  the  courts  of  this  state, 
in  the  same  manner  as  corporations  created  under  the 
laws  of  this  state,  upon  giving  security  for  the  payment 
of  the  costs  of  suit,  in  the  same  manner  that  non-residents 
are  required  by  law  to  do.^*  But  when,  by  the  laws  of 
this*  state,  any  act  is  forbidden  to  be  done  by  any  cor- 
poration, or  by  any  association  of  individuals,  without 
express  authority  by  law,  and  such  act  shall  have  been 
done  by  a  foreign  corporation,  it  shall  not  be  authorized 
to  maintain  any  action  founded  upon  such  act,  or  upon 
any  liability  or  obligation,  express  or  implied,  arising  out 
of,  or  made  or  entered  into  in  consideration  of  such  act.^'' 

state  without  subjecting  themselves  sions  and  thereby  acquiring  author- 
to  certain  liabilities  and  obliga-  ity  to  transact  business  in  t)ns  state, 
tions. ' '  upon  the  same  footing  as  domestic 
lOJud.  Act,  ch.  23,  §41;  Comp.  corporations,  with  the  same  right  to 
Laws  1915,  §  12856.  prosecute  and  defend  actions  in  the 

11  See  Executions.  courts  of  this  state  and  to  enforce 

12  See  Quo  Warranto.  their  contracts  and  use  the  remedies 

13  Jiid.    Act,    ch.   40,    §1;    Comp.  authorized  by  law  as  are  possessed 
Laws  1915,  §  13563  et  seq.  by  such  domestic  corporations.   Stack 

14Jud.    Act,    ch.    29,    §§58,    59;  v.  Detour  Lumber  &  Cedar  Co.,  151 

Comp.  Laws  1915,  §§  13225,  13226.  Mich.    29;    Lsle    Royale    Land    Cor- 

15Jud.   Act,   ch.    12,    §18;    Comp.  poration  v.  Osmun,  76  Mich.  162. 

Laws  1915,  §12369.  16  Jud.   Act,   ch.   12,    §19;    Comp. 

The    statute    puts    foreign    corpo-  Laws  1915,  §12370. 

rations,    complying    with    its    provi-  This  section,  instead   of  rejecting 


426  Corporations 

Foreign  corporations  may  be  sued  in  this  state,  and  the 
venue  of  such  actions  is  fixed  by  the  Judicature  Act." 
However,  it  is  held  that  jurisdiction  over  a  foreign  cor- 
poration not  engaged  in  local  business  cannot  be  acquired 
by  serving  the  manager  of  the  company  who  is  casually 
in  the  state  and  not  as  the  representative  of  the  corpora- 
tion.^^ 

COSTS 

§    1.  Origin  of  right  to  recover. 

§    2.  Nature  of  and  necessity  for  judgment. 

§    3.  When  plaintiff  may  recover. 

§    4.  Limiting  to  amount  of  damages. 

§    4a.  Double  costs  where  affidavit  of  merits  not  made  in  good  faith. 

§    5.  When  defendant  may  recover. 

§    6.  One-half  additional  costs. 

§    7.  How  awarded  in  case  of  several  issues. 

§    8.  In  civil  suits  in  name  of  people. 

§    9.  Wliat  allowed  in  addition  to  disbursements. 

§  10.  BID  of  costs. 

§11.  Affidavit  and  certificate. 

§  12.  By  whom  may  be  taxed  and  notice  thereof. 

§  13.  Taxation. 

§  14.  Appeal  from  taxation. 

§  15.  Payment  and  collection. 

Cross-Eeferences:  Security  for  Costs;  Motions,  etc.  (motion  costs); 
Tender  (effect  on  costs);  Payment  Into  Court;  Offer  of  Judgment; 
Error,  Writ  of  (costs  on  writ  of  error);  Supreme  Court;  Mandamus; 
Foreclosure  by  Advertisement;  Justices  of  the  Peace  (costs  where 
action  transferred  or  appealed  to  circuit  court) ;  Garnishment;  Defaults. 
Costs  in  particular  actions  or  proceedings,  see  Ejectment,  Certiorari, 
Mandamus,    Garnishment,    Supplementary    Proceedings,    Attachment, 

or  modifying  the  rule  of  comity,  ex-  forbidden  by  the  laws  of  this  state 
pressly.  adopts  the  substance  of  that  to  do  certain  things,  but  only  to 
rule,  so  far  as  the  enactment  extends.  cases  where  such  prohibition  is  gen- 
It  applies  only  to  acts  which,  by  the  eral,  applying  to  all  corporations 
laws  of  this  state,  are  forbidden  to  and  all  associations  of  individuals  in 
be  done  "by  any  corporation  or  as-  this  state."  Thompson  v.  Waters,  25 
sociation  of  individuals,  without  ex-  Mich.  235. 
press  authority  of  law.     It  does  not  17  See  Venue. 

apply    at    all    to    cases    where    only  18  Matthews  v.  Montreal  Min.  Co., 

some  particular  corporation,  or  even  183  Mich.  541. 
a  particular  class  of  corporations,  is 


§  2  Costs  427 

ETC.     Costs  on  imrtieular  motions,  see  New   Trial,  Defaults,   Attach- 
ment, ETC. 

§  1.  Origin  of  right  to  recover. 

At  common  law,  if  the  judgment  was  for  the  plaintiff, 
it  was  also  considered  that  the  defendant  be  "in  mercy" 
(in  misericordia), — that  is,  be  amerced  or  fined  for  his 
delay  of  justice, — and,  if  for  the  defendant,  that  the 
plaintiff  be  ''in  mercy"  for  his  false  claim  (pro  falso 
clamore  suo).^  But  the  fine  thus  laid  upon  the  van- 
quished party  went  not  to  the  victor,  but  to  the  king, 
and  was  therefore  not  at  all  regarded  as  an  indemnity 
to  the  prevailing  party  for  the  expenses  incurred  in  se- 
curing his  legal  remedy  or  obviating  an  unjust  claim,  but 
rather  as  a  punishment  to  the  defeated  party  for  his  un- 
lawful conduct.  Costs  eo  nomine  were  not  given  except 
by  virtue  of  statutory  provision,  though  for  some  time, 
in  actions  where  damages  were  given,  costs  were  in  real- 
ity considered  and  included  in  the  quantum  of  damages; 
but,  because  the  damages  were  often  inadequate  to  in- 
clude the  plaintiff's  expenses,  the  statute  of  Gloucester^ 
ordered  costs  as  such  to  be  also  added.  No  costs,  how- 
ever, were  allowed  to  the  defendant  in  any  shape  until 
later  statutes  ^  gave  to  the  defendant,  if  he  prevailed,  the 
same  costs  as  the  plaintiff  would  have  been  allowed  if 
he  had  recovered.* 

§  2.  Nature  of  and  necessity  for  judgment. 

Costs,  not  being  given  at  common  law,  are  not  recov- 
erable in  any  instance  unless  authorized  by  statutory 
provision.^     In  cases  where  costs  are  authorized,  they 

13  Cooley's  Bl.  Comm.  398,  399;  5  Booth  v.  McQueen,  1  Doug.  41; 

Steph.  PI.  137.  Tolford    v.    Church,    66    Mich.    431; 

2  6  Edw.  I,  ch.  1,  sec.  2.  Jeffrey  v.  Hursh,  58  Mich.  247;  Ap- 

3  23  Hen.  VIII,  ch.  15;  4  Jac.  I,  lin  v.  Baker,  84  Mich.  113;  Hester  v. 
ch.  3;  8  &  9  Wm.  Ill,  ch.  11;  4  Park  Com'rs  of  City  of  Detroit,  84 
Anne,  ch.  16.  Mich.  450;   Black  v.  Carpenter,   104 

4  3  Cooley's  Bl.  Comm.  399.  Mich.  286;   Chesbrough  Lumber  Co. 


428  Costs  |  2 

cannot  be  recovered,  unless  there  be  judgment  for  them, 
either  as  a  specific  sum  named  in  the  judgment  entry  or, 
as  is  more  frequently  the  case,  to  be  taxed  at  a  later 
time.®  When  ascertained,  they  are  an  incident  of  the 
judgment.  When  taxed  after  the  judgment  has  been 
entered,  the  action  fixing  them  relates  back  to  the  judg- 
ment and  they  become  a  part  of  it.' 

Under  the  act  which  authorizes  courts  of  record  to 
make  binding  declarations  of  the  construction  of  and 
rights  arising  under  any  written  instrument,  the  allow- 
ance of  costs  is  provided  for.^ 

§  3.  When  plaintiff  may  recover. 

In  the  following  cases,  if  the  plaintiff  recover  judg- 
ment by  default,  upon  confession,  verdict  or  otherwise, 
in  any  action  or  proceeding  at  law,  he  is  entitled,  by 
statute,  to  recover  his  costs: 

1.  In  all  actions  of  ejectment  or  for  waste  or  private 
nuisance,  and  in  all  proceedings  to  recover  the  posses- 
sion of  land  forcibly  entered  or  forcibly  or  otherwise  un- 
lawfully detained.^ 

2.  In  all  actions  in  which  the  title  to  lands  or  tene- 
ments, right  of  way  or  right  by  prescription  or  otherwise 
to  any  easement  in  any  land,  or  to  overflow  the  same, 
or  to  do  any  other  injury  thereto,  has  been  put  in  issue 
by  the  pleadings  or  has  come  in  question  on  the  trial  of 

V.     Chippewa     Circuit     Judge,     190  7  Saunders  v.  Tioga  Mfg.  Co.,  27 

Mich.  r,:>,9.  Mich.    520;    Whelpley    v.    Nash,    46 

In   proceedings  by  attachment,  to  Mich.  25;   Hunt  v.  Middlesworth,  44 

enforce  or  protect  the  civil  rights  or  Mich.  448. 

remedies  of  parties,  or  for  the  non-  8  Pub.  Acts  1919,  No.  150. 

l)ayment  of  any  sum  of  money,  costs  9  Applies  where  navigable   stream 

shall  be  awarded  to  be  paid  by  the  is  obstructed.     Gifford  v.  McArthur, 

offending  party.     Jud.  Act,   ch.  47,  55  Mich.  5.35. 
§28;    Comp.   Laws   1915,   §13709. 

6  Courtright  v.  Kirchner,  43  Mich. 
411. 


Costs 


429 


the  cause.^"    In  this  class  of  actions  it  is  immaterial  that 
the  recovery  is  less  than  $100." 

3.  In  suits  and  proceedings  upon  writs  of  prohibition 
or  informations  in  the  nature  of  a  quo  warranto. 

4.  In  all  actions  of  replevin,  and  in  all  actions  for  the 
recovery  of  any  debt  or  damages  or  for  the  recovery  of 
penalties  or  forfeitures,  in  all  cases  where  the  court  has 
exclusive  or  concurrent  jurisdiction.  This  excludes  the 
awarding  of  costs  ordinarily  where  the  recovery  is  less 
than  $100,  since  generally  such  actions  are  within  the 
exclusive  jurisdiction  of  justices  of  the  peace,^^  except 
in  particular  cases  where  it  is  othei*wise  provided  by 


lOOstrom  v.  Potter,  104  Mich. 
115;  Haney  v.  Munger,  104  Mich. 
119;  Sands  v.  Manistee  Circuit 
Judge,  116  Mich.  9;  Fisk  v.  Wabash 
R.  Co.,  114  Mich.  248. 

•The  title  is  not  in  issue  in  tres- 
pass quare  clausum  under  a  general 
denial  (Ostrom  v.  Potter,  104  Mich. 
115),  nor  in  an  action  against  a  rail- 
road company  for  negligently  setting 
fire  to  the  land  of  plaintiff  where 
the  company  defended  on  the  ground 
that  it  exercised  due  care,  and  did 
not  claim  any  interest  in  the  land 
(Fisk  V.  Wabash  R.  Co.,  114  Mich. 
248).  Where  plaintiff  sues  for  per- 
sonal injuries  caused  by  piling  logs 
in  a  highway,  as  constituted  by  user, 
and  the  defense  is  a  prescriptive 
right  to  so  use  it,  a  judgment  for 
plaintiff  entitles  him  to  costs  (Know 
V.  MaeComb  Circuit  Judge,  78  Mich. 
168).  A  general  verdict  where  the 
declaration  contains  counts  for  tres- 
pass to  realty  and  also  to  personalty 
warrants  a  judgment  for  costs,  where 
the  title  to  the  realty  was  put  in 
issue  by  a  notice  given  with  a  plea 
of  the  general  issue  that  defendant 
would  show  ownership  in  himself 
(Walters    v.    Teft,    57    Mich.    390). 


Plaintiff  is  entitled  to  costs  in  an 
action  for  the  value  of  certain  gravel 
taken  by  defendant,  partly  from 
plaintiff's  city  lot,  and  partly  from 
an  adjoining  alley,  between  its  cen- 
ter and  the  side  adjoining  the  lot, 
where  defendant  claims  a  license  to 
remove  the  gravel  (Cuming  v.  Prang, 
24  Mich.  514). 

11  Koenigshof  v.  Spaulding,  59 
Mich.  245;  Druse  v.  Wheeler,  22 
Mich.  439. 

12  Reed  v.  Overlie,  192  Mich.  444 
(double  damages  fixes  amount); 
Strong  V.  Daniels,  3  Mich.  466;  Ink- 
ster  V.  Carver,  16  Mich.  484;  People 
V.  Ingham  Circuit  Judge,  38  Mich. 
243;  Mandigo  v.  Mandigo,  26  Mich. 
349;  Strong  v.  Kennedy,  40  Mich. 
327;  Carter  v.  Snyder,  27  Midi.  484; 
Ladd  v.  Duncan,  23  Mich.  285. 

In  replevin,  where  the  plaintiff  re- 
covers less  than  one  hundred  dollari 
for  the  value  of  the  property,  the 
defendant  is  entitled  to  costs.  Berndt 
V.  Ionia  Circuit  Judge,  111  Mich. 
359;  Kirby  Carpenter  Co.  v.  Trom- 
bley,  101  Mich.  447;  Kittridge  v. 
Miller,  45  Mich.  478.  Compare  Cald- 
well V.  Bowen,  80  Mich.  382. 


430  Costs  §  3 

statute  or  where  the  circuit  court  has  jurisdiction  even 
though  the  recovery  is  less  than  $100.^^  If  the  judgment 
fails  to  determine  the  amount  of  damages  sustained, 
costs  cannot  be  imposed  on  defendant  under  this  sub- 
division.^* 

5.  In  all  actions  where  the  plaintiff  recovers  less  than 
one  hundred  dollars,  if  his  claim,  as  established  at  the 
trial,  exceeded  one  hundred  dollars  and  was  reduced  by 
set-off,^^  or  if  the  suit  was  one  which  could  not  have  been 
lawfully  commenced  in  justice's  court. 

6.  In  actions  for  trespass  upon  land  or  for  taking  per- 
sonal property,  where  the  court  before  whom  the  case 
has  been  tried  certifies  in  his  minutes,  or  the  jury  by 
whom  the  damages  are  assessed  find  and  return  in  their 
verdict,  that  such  trespass  was  willful  and  malicious. 

7.  In  actions  for  a  false  return  or  for  any  other  mal- 
feasance or  misfeasance  by  any  ministerial  or  judicial 
officer  in  such  capacity  or  office,  except  such  actions 
against  constables  or  other  ministerial  officers,  touching 
their  duties  upon  process  issued  in  civil  actions  brought 
in  a  justice's  court.^^ 

13  Krzyszke  v.  Kamin,  163  Mich.  after  tender  and  after  suit  brought, 
290;  Mason  v.  City  of  Muskegon,  the  plaintiff  will  recover  costs  if  the 
109  Mich.  456;  Eeath  v.  Western  aggregate  of  his  recovery  and  the 
Union  Tel.  Co.,  89  Mich.  22;  Gur-  amount  so  paid  exceeds  one  hun- 
ney  v.  City  of  St.  Clair,  11  Mich.  dred  dollars.  Thompson  v.  Town- 
202;  Ladd  y.  Duncan,  23  Mich.  285.  send,  41  Mich.  346. 

14  Hemingway  v.  Peter,  25  Mich.  It  is  immaterial  whether  the  judg- 
202.  ment  is  for  damages  only  or  in  part 

15  Ladd  V.  Duncan,  23  Mich.  285.  also  for  a  penalty,  if  the  judgment 
Plaintiff  will  not  be  entitled  to  itself  as  distinguished  from  the  re- 
costs  on  the  claim  that  his  recovery  covery  exceeds  one  hundred  dollars, 
would  have  been  more  than  one  hun-  Reed  v.  Overlie,  192  Mich.  444. 
dred  dollars  if  it  had  not  been  re-  16  Jud.  Act,  ch.  47,  §7;  Comp. 
duced  by  set-off,  where  the  reduction  Laws  1915,  §  13688. 

was  by  payment  of  a  part  of  his  de-  Payment  of  claim  before  trial  does 

n^and.      Mandigo    v.    Mandigo,    26  not  deprive  "plaintiff  of  his  right  to 

Mich.   349;    Strong  v.  Kennedy,  40  costs.     E.  B.  Miller  &  Co.  v.  Olney, 

Mich.  327.  80  Mich.  293. 

But,    if    the    payment    was    made  Right  to  double  or  treble  damages 


§  5  Costs  431 

§  4.  Limiting  to  amount  of  damages. 

In  an  action  for  assault  and  battery,  false  imprison- 
ment or  malicious  prosecution,  or  for  slanderous  words 
or  for  libel,  or  to  recover  damages  occasioned  by  the 
erection  of  any  dam  upon  the  lands  of  the  defendant  for 
manufacturing  or  milling  purposes  and  the  flowing  of 
the  lands  of  the  plaintiff,  if  the  plaintiff  recovers  less 
than  fifty  dollars,  he  can  recover  no  more  costs  than 
damages." 

§  4a.  Double  costs  where  affidavit  of  merits  not  made 

in  good  faith. 
By  statute,  if  it  appears  on  the  trial  to  the  satisfaction 
of  the  court,  that  an  affidavit  of  merits  made  in  an  action 
on  a  contract  or  judgment  to  prevent  a  summary  judg- 
ment or  for  the  purpose  of  preventing  a  continuance,  was 
not  made  in  good  faith  but  was  made  solely  for  the  pur- 
pose of  delay,  the  court  shall  award  to  the  plaintiff  in  the 
judgment  rendered  therein  double  the  amount  of  costs 
taxable  in  the  cause." 

§  5.  When  defendant  may  recover. 

In  all  actions  and  proceedings  in  which  the  plaintiff 
would  be  entitled  to  costs  upon  a  judgment  rendered  in 
his  favor,  if,  after  the  appearance  of  the  defendant,  the 
plaintiff  be  non-suited,  discontinue  his  suit  or  be  non- 
prossed, or  judgment  pass  against  him  on  verdict  or 
otherwise,  or  in  case  a  plaintiff  recovers  judgment,  but 
not  enough  to  entitle  him  to  costs,  the  defendant  is  en- 
titled to  recover  against  the  plaintiff  his  full  costs,  the 
judgment  for  which  will  have  the  same  effect  as  other 

does  not  include  right  to  double  or  ticc  's  court,  however,  are  not  limited 

treble  costs.    Jud.  Act,  ch.  47,  §14;  by  the  provision  stated  in  the  text, 

Comp.  Laws  1915,  §  13695.  but    rest    in    the    discretion    of    the 

17  Jud.  Act,  ch.  47,  §§  8,  9;  Comp.  court.  Evers  v.  Sager,  28  Mich.  47. 
Laws  1915,  §§  1.3689,  13690.  18  Jud.   Act,   ch.   18,    §10;    Comp. 

Costs  in  cases  appealed  from  jus-  Laws  1915,  §  12582. 


432  Costs  §  5 

judgments.^®  When  several  persons  are  made  defend- 
ants in  any  suit  or  proceeding,  or  in  any  action  in  which 
the  plaintiff,  upon  a  recovery,  would  be  entitled  to  costs, 
and  one  or  more  of  them  is  acquitted  by  verdict  on  the 
trial  or  by  judgment  upon  motion  to  dismiss  or  by  the 
plaintiff's  discontinuing  as  to  such  defendant,  every  per- 
son so  acquitted  is  entitled  to  recover  his  costs  in  like 
manner  as  if  judgment  had  been  rendered  in  favor  of 
all  the  defendants.'^"  But  if  such  person  be  so  acquitted 
in  any  action  brought  for  the  recovery  of  land  or  the 
jjossession  thereof,  or  for  nuisance,  waste,  trespass  or 
trespass  on  the  case  for  any  non-feasance  or  misfeasance, 
and  if  the  judge  or  court  before  whom  such  trial  is  had 
or  such  judgment  given  certifies  in  the  minutes  of  the 
court  that  there  was  reasonable  cause  for  making  the 
person  so  acquitted  a  defendant  in  the  action,  then  such 
person  will  not  be  entitled  to  recover  costs,  nor  can  costs 
be  recovered  against  him.^^  And  if,  in  any  action  founded 
upon  a  contract,  the  plaintiff  fails  to  recover  against  one 
of  several  defendants  on  the  trial,  or  if  judgment  on  a 
motion  to  dismiss  be  rendered  in  favor  of  one  of  several 
defendants,  or  if,  by  the  plaintiff's  discontinuing  as  to 
such  defendant,  he  be  acquitted,  such  defendant  will  not 
be  entitled  to  recover  costs  unless  a  certificate  be  given 
by  the  judge  or  court  before  whom  the  trial  was  had  or 
the  judgment  given,  and  be  entered  in  its  minutes,  that 

19  Jud.   Act,   ch.   47,    §  10 ;    Comp.  are  not   in  such  case  in   the   discre- 

Laws  1915,  §  13691 ;  Strong  v.  Dan-  tion  of  the  court.     Sherman  v.  Jos- 

iels,  3  Mich.  466;  Inkster  v.  Carver,  lin,  52  Mich.  474. 

16   Mich.   484;   Meyer  v.  Wood,  38  Where  a  case  goes  to  trial  and  all 

Mich.  297;  Dikeman  v.  Harrison,  38  of  defendants  are  successful,  each  is 

Mich.  617;  Stortz  v.  Ingham  Circuit  not   entitled   to   full   costs   but   only 

Judge,  38  Mich.  243;   Berndt  v.  lo-  one    bill     of    costs    is    permissible, 

nia  Circuit  Judge,  111   Mich.   359;  Black  v.  Carpenter,  104  Mich.  286. 

Eeed  v.  Overlie,  192  Mich.  444;  Bry-  20  Jud.  Act,   ch.  47,    §  11;    Comp. 

an  V.  Smith,  10  Mich.  229.  If  plain-  Laws  1915,  §  13692. 

tiff  discontinues  his  suit  which  was  21  Jud.   Act,   ch.   47,   §12;    Comp. 

appealed  from  justice's  court,  the  de-  Laws  1915,  §  13693. 
fendant  is  entitled  to   costs.     They 


§  6  Costs  433 

such  defendant  was  unreasonably  and  unnecessarily  made 
a  party  to  the  action.^^ 

§  6.  One-half  additional  costs. 

If  judgment  be  rendered  for  the  defendant  upon  ver- 
dict, motion  to  dismiss,  non-suit,  non-pros,  discontinu- 
ance by  the  plaintiff  or  othei^vise  in  any  action,  cer- 
tiorari, writ  of  error  or  other  proceeding,  such  defendant 
is  entitled  to  recover  the  amount  of  his  taxed  costs  and 
one  half  thereof  in  addition  in  the  following  cases: 

1.  In  actions  against  public  officers  appointed  under 
the  authority  of  this  state  or  elected  by  the  people,  or 
against  any  person  specially  appointed  by  law  to  ex- 
ecute the  duties  of  such  a  public  officer,  for  or  concern- 
ing any  act  done  by  such  officer  or  person  by  virtue  of 
his  office  or  for  or  concerning  the  omission  by  such  of- 
ficer or  person  to  do  any  act  which  it  was  his  official  duty 
to  perform. 

2.  In  actions  against  any  other  person  for  doing  any 
act  by  the  commandment  of  such  officers  or  persons,  or 
in  their  aid  or  assistance,  touching  the  duties  of  such 
office  or  appointment. 

3.  In  actions  against  any  person  for  making  any  sale 
or  doing  any  other  act  by  authority  of  any  statute  of 
this  state.^' 

22Jud.   Act,   ch.   47,    §  l.'J ;    Comp.  son  Circuit  Judge,  157  Mich.  231. 
Laws   1915,   §13694.  23  Jud.   Act,   ch.   47,    §15;    Comp. 

The    right    of    a    codefendant    to  Laws  1915,  §  13696. 
costs  as  a  condition  of  the  case  be-  It    has    been    held    that    where    a 

ing  discontinued  as  to  him,  as  pro-  party  is  entitled  to  double  costs,  it 

vided  for  by  rule  of  court,  may  be  is   not   necessary   to   have   an   entry 

waived      by      him      by      failure      to  made    in    the    minutes   of   the   court 

promptly  urge  the  point;  but  plain-  sjiecifying  that  the  facts  in  said  case 

tiff  is  liable  for  such  costs  although  entitled   him   to   such   costs    (People 

the  court  does  not  certify  that  his  v.   Wayne   Circuit  Judge,    14   Mich, 

joinder    was    unreasonable    and    un-  33) ;  but  the  better  and  safer  prac- 

necessary,   since  the  general  statute  tiee  is  to  enter  a  suggestion  on  th(- 

does  not  apply.     Townscnd  v.  Jack-  record. 
]  Ab})0tt— 28 


434  Costs  §  7 

§  7.  How  awarded  in  case  of  several  issues. 

When  there  are  several  issues  in  a  cause  and  a  ver- 
dict is  rendered  for  the  plaintiff  on  one  or  more  of  them 
and  for  the  defendant  on  another,  if  the  plaintiff  obtains 
judgment  upon  the  whole  record,  costs  are  awarded  as 
follows : 

1.  When  the  substantial  cause  of  action  is  the  same 
in  each  issue,  the  plaintiff  will  recover  costs  on  the  issues 
which  are  found  for  him  and  will  not  be  liable  to  the  de- 
fendant for  the  costs  of  the  issues  which  are  found  for 
the  defendant. 

2.  When  there  are  two  or  more  distinct  causes  of  action 
in  separate  counts,  the  plaintiff  will  recover  costs  on 
those  issues  which  are  found  for  him,  and  the  defendant 
on  those  which  are  found  in  his  favor.^*  If  judgment  be 
recovered  for  the  defendant  on  the  whole  record,  the 
costs  of  the  issues  which  are  found  for  the  plaintiff  will 
not  be  allowed  to  either  party.^^  And  when  judgment 
is  rendered  in  favor  of  a  defendant  upon  a  motion  to  dis- 
miss one  or  more  counts  in  the  declaration  and  the  plain- 
tiff has  judgment  on  other  counts  on  such  motion,  on 
verdict  or  by  default,  the  defendant  will  be  allowed  his 
costs  upon  such  judgment  in  his  favor.'^^ 

§  8.  In  civil  suits  in  name  of  people. 

In  all  civil  suits  and  proceedings  by  or  in  the  name 
of  the  people  of  this  state,  instituted  by  any  officer  duly 
authorized  for  that  purpose,  and  not  brought  on  the  re- 
lation or  for  the  use  of  any  citizen  or  upon  any  penal 
statute,  the  people  are  liable  for  costs  in  the  same  cases 
and  to  the  same  extent  as  if  the  suit  or  proceeding  were 

24Jud.   Act,  ch.   47,    §17;    Comp.  25  Jud.   Act,   ch.   47,    §18;    Comp. 

Laws    1915,    §  13698.      Application,  Laws  1915,  §  13699. 

sec  Frank  v.   Speed,  54  Mich.   241;  26  Jud.   Act,   ch.   47,    §19;    Comp. 

Besser  v.  Alpena  Circuit  Judge,  155  Laws  1915,  §  13700. 
Mich.  631. 


§  9  Costs  435 

instituted  by  an  individual."  When  a  suit  or  proceed- 
ing is  instituted  in  the  name  of  the  people  of  this  state 
on  the  relation  of  any  citizen,  the  relator  will  be  entitled 
to,  and  liable  for,  costs  in  the  same  cases  and  to  the  same 
extent  as  if  the  suit  or  proceeding  had  been  instituted 
in  his  own  name.^^ 

§  9.  What  allowed  in  addition  to  disbursements. 

In  addition  to  the  fees  of  officers,  disbursements  and 
witnesses  in  suits  at  law,^^  commenced  or  brought  into 
the  circuit  court  by  ajjpeal  or  othei-wdse,  costs  are  al- 
lowed to  the  prevailing  party  as  follows: 

For  proceedings  before  trial,  in  all  civil  cases,  fifteen 
dollars;  for  the  trial  of  any  case,  fifteen  dollars;  in  all 
actions  where  a  judgment  is  taken  by  default  or  on  cog- 
novit, fifteen  dollars;  in  all  cases  of  special  motions,  such 
sum  not  exceeding  fifteen  dollars  as  the  court  deems 
just;  for  every  term  at  which  a  cause  is  regularly  on  the 
calendar  and  not  reached  or  is  postponed,  excluding  that 
at  which  it  is  tried,  five  dollars,  but  no  term  fee  will  be 
allowed  to  any  party  for  any  term  at  which  he  was  al- 
lowed a  continuance  fee;  in  all  cases  heard  and  deter- 
mined on  appeal,  the  costs,  or  such  part  thereof  as  to  the 

27  Jud.   Act,   eh.   47,    §25;    Comp.  to   discharge   a  judgment   for  costs 

Laws  1915,  §  1370G.  against  the  state  the  same  as  against 

This  statute  does  not  allow  costs  an  individual.     Flint,  etc.,  E.  Co.  v. 

in  actions  brought  on  any  penal  stat-  Board  of  State  Auditors,  102  Mich, 

ute.       Courtright    v.    Kirchmer,    43  500. 

Mich.  411;    People  v.  Auditor  Gen-  28  Jud.   Act,  ch.  47,   §26;    Comp. 

eral,  38  Mich.  94.  Laws  1915,  §  13707. 

An  action  in  the  name  of  the  peo-  29  Three    dollar    stenographer    fee 

pie  of  the  state  to  recover  a  penalty  may    be    taxed.     Jud.    Act,   ch.   47, 

against    a    foreign    corporation    for  §1;   Comp.  Laws  1915,   §13682.    So 

doing  business  within  this  state  with-  may  costs  of  transcript  of  stenogra- 

out    filing    articles   of   incorporation  pher's  notes,  wliere  desired  for  a  new 

is  within  the  exception  in  this  stat-  trial,  bill  of  exceptions,  or  to  remove 

ute.     People   v.   Crucible   Steel   Co.,  the  case  to  the  supreme  court.    Jud. 

151  Mich.  618.  Act,  ch.  47,  §2;  Comp.  Laws  1915, 

Interest  on  costs  may  be  required  §  13683. 


436  Costs  §  9 

court  seems  just  in  view  of  the  particular  circumstances 
of  each  case,  may  be  awarded  to  either  party;  in  all  cases 
of  certiorari  to  a  circuit  court,  fifteen  dollars.  If  a  judg- 
ment on  certiorari  be  reversed  in  part  and  aflfirmed  as 
to  the  residue,  costs  are  in  the  discretion  of  the  court, 
and,  in  all  cases,  the  party  prevailing  in  the  circuit  court 
may  tax,  in  addition  to  the  costs  so  allowed  him,  such 
costs  as  he  would  have  been  entitled  to  tax  had  he  pre- 
vailed in  the  court  below  and  such  costs  as  he  paid  on 
taking  the  appeal,  if  he  was  the  appellant  in  the  cause. ^° 
The  words,  '* prevailing  party,"  as  here  used,  refer  to 
the  parties  who  would  be  entitled  to  costs  under  the  other 
provisions  of  the  statutes  relating  to  costs,  and  not  to 
parties  who,  although  they  recover  damages,  are  not 
given  costs  by  such  provisions.^^ 

§  10.  BiU  of  costs. 

The  first  step  to  be  taken  in  the  proceeding  to  tax  costs 
by  the  party  to  whom  costs  have  been  awarded  by  the 
judgment  of  the  court  is  to  prepare  a  bill  of  the  items 
of  the  same  for  presentation  to  the  taxing  officer  and  to 
the  adverse  party.  The  bill  of  costs  should  contain  an 
item  of  each  charge  or  expense  which  it  is  proposed  to 
tax,  and  not  be  made  up  of  aggregate  sums  the  component 
items  of  which  are  not  distinctly  specified.^** 

SOJud.    Act,    ch.    47,    §4;    Comp.  Judge,   111   Mich.   71.     Nor   by   the 

Laws  1915,  §  13685.     Term  fees,  see  fact    that    the    continuance    was   by 

Baxter  v.  Eockwell,  175  N.  W.  387;  consent   without   terms.      Monroe   v. 

Weber  v.  Wayne  Circuit  Judge,  162  Eogers,    1    Mich.    N.    P.    241.      But 

Mich.  32.  where  a  nonsuit  entered  at  a  previ- 

Right  to  tax  two  fees  for  proceed-  ous  term  is  set  aside  upon  payment 

ings  before  trial,  where  a  new  trial  of  costs,  and  nothing  further  is  done 

ifi  granted,  see  MeGiloray  v.  Manis-  with  the  case  at  that  term,  no  term 

tee  Circuit  Judge,  146  Mich.  180.  foe  is  allowable.     Inkstcr  v.  Carver, 

The  right  to  term  fees  is  not  af-  17  Mich.  64. 

fected  by  the  fact  that  the  court 's  31  Inkster  v.  Carver,  16  Mich.  484. 

business  was  such  that  it  was  appar-  32  Gene.see    Coimty    Sav.    Bank    v. 

cnt  that  the  cause  could  not  be  Ottawa  Circuit  Judge,  54  Mich.  305. 
reached.     Martin  v.  Wayne  Circuit 


^  1 1  Costs  437 

§  11.  Affidavit  and  certificate. 

When  there  are  charges  in  a  bill  of  costs  for  the  at- 
tendance of  any  witness  or  for  copies  or  exemplification 
of  documents  or  papers  or  for  any  other  disbursements, 
except  to  officers  for  services  rendered,  such  charges  for 
witnesses  will  not  be  taxed  without  an  affidavit  stating 
the  distance  they  respectively  traveled  and  the  days  they 
actually  attended,  and  such  charges  for  copies  will  not 
be  taxed  without  an  affidavit  that  such  copies  were  actu- 
ally and  necessarily  used  or  necessarily  obtained  for  use, 
nor  can  such  disbursements  be  allowed  without  an  affi- 
davit specifying  the  items  thereof  particularly  nor  un- 
less they  appear  to  have  been  necessary  and  reasonable 
in  amount;  and  when  in  any  case  a  party  is  entitled  to 
charge  witness'  fees  and  his  bill  of  costs  contains  an  item 
or  items  for  the  attendance  and  travel  of  the  party  him- 
self as  a  witness,  such  item  or  items  may  be  taxed  upon 
affidavit  that  the  party  was  in  attendance  upon  the  court 
for  the  time  charged  for  the  purpose  of  being  sworn  as 
a  witness,  and  not  to  assist  in  the  management  of  the 
cause,  and  that  the  travel  was  for  the  purpose  of  giving 
his  evidence.  And  if,  in  the  trial  of  a  cause,  the  plain- 
tiff's claim  has  been  reduced  by  set-off  or  any  other  fact 
appears  which  entitles  either  party  to  costs  or  to  double 
costs,  the  judge  holding  the  court  will,  on  the  applica- 
tion of  either  party,  either  before  or  after  verdict,  cause 
an  entiy  to  be  made  in  the  minutes  of  the  court,  specify- 
ing that  such  fact  appeared;  and  no  evidence  of  such 
fact  other  than  a  certified  copy  of  such  minutes  or  the 
certificate  of  the  judge  who  tried  tlie  case  can  lawfully 
be  received  by  the  taxing  officer.^^ 

33  Jud.    Act,    ch.    47,    §§35,    36;  a  party  as  a  witness  may  be  taxed. 

Comp.  Laws  191.'5,  §§  13716,  13717.  Smith  v.  Smith,  146  Mich.  186. 

Entry    must    be    applied    for    and  Where  a  continuance  is  granted  on 

made  before   judgment.     Ramsay  v.  payment  of  all  legal  costs  incurred 

Kittredge,  23  Mich.  488.  for  the  term,  the  costs  to  which  the 

On  a  proper  affidavit,  the  fees  of  party   is    entitled   arc   those    of   the 


438  Costs  §  11 

It  has  been  held  that  an  affidavit  for  the  taxation  of 
witnesses'  fees  for  travel  should  show  the  residence  of 
each  witness  as  well  as  the  other  requisites,  such  fees 
being  estimated  from  the  residence  of  the  witnesses,  if 
within  the  state,  or  from  tlie  boundary  line  of  the  state 
which  the  witness  passed  in  coming,  if  his  residence  be 
out  of  the  state.^*  If  witnesses  are  made  to  attend  in 
good  faith  and  there  is  proof  of  their  necessity,  the  fact 
that  they  are  not  called  will  not  prevent  taxation  for  their 
attendance,  where  the  party  had  reason,  from  the  state 
of  the  pleadings,  to  believe  he  required  them.  It,  how- 
ever, is  not  enough  merely  that  they  were  material,  for 
it  is  not  proper  to  accumulate  too  many  witnesses  on  the 
same  point.  There  should  be  an  allowance  for  all  that 
were  actually  necessary  as  the  case  appeared  while  they 
were  retained,  if  they  were  called  no  sooner  and  kept  no 
longer  than  the  apparent  necessity  existed.^^  But  where 
the  bill  of  costs  does  not  disclose  such  a  large  number  of 
witnesses  as  to  lead  to  an  inference  that  witnesses  were 
unnecessarily  accumulated,  and  the  affidavit  states  that 
they  were  in  good  faith  made  to  attend,  it  cannot  be  said, 
in  the  absence  of  any  counter-showing,  that  they  were  not 
deemed  necessary  and  caused  to  attend  in  good  faith.^^ 
Fees  for  the  attendance  of  parties  as  witnesses  are  not 
covered  by  the  ordinary  affidavit  of  disbursements,  but 
there  should  be  a  special  affidavit  showing  that  they  at- 
tended in  the  capacity  of  witnesses  and  traveled  as 
charged  for  that  purpose,  and  not  as  parties  to  assist,  by 
their  counsel  or  otherwise,  in  the  conduct  of  the  cause.'' 

date  of  his  accepting  notice  of  taxa-  Jud.  Act,  ch.  48,   §3;    Comp.  Laws 

tion,  the  notice  being  given  on  the  191o,    §13720;    Ehle   v.  Bingham,  4 

same  day  that  the  continuance  was  Hill  (N.  Y.)  595. 

granted,  and  do  not  include  the  fees  35  Gilbert  v.  Kennedy,  22  Mich.  5. 

of    witnesses    detained    after    that  36  Jeffery  v.  Hursh,  58  Mich.  247. 

date.      Barney   v.    Love,   101    Mich.  37  Dickinson    v.    Seaver,  44   Mich. 

543.  624,  633. 
34  Jeffery  v.  Hursh,  58  Mich.  247 ; 


§  12  Costs  439 

When  it  is  sought  to  tax  disbursements  for  taking  care 
of  attached  property,  an  affidavit  for  that  purpose  is 
defective  if  it  does  not  point  out  the  names  and  services 
of  the  different  persons  to  whom  the  plaintiff  claims  to 
have  made  the  payments,^^ 

§  12.  By  whom  may  be  taxed  and  notice  thereof. 

The  statute  provides  that  costs  in  the  several  circuit 
courts  and  in  municipal  courts  of  record  having  civil 
jurisdiction  may  be  taxed  by  any  officer  authorized  to 
tax  costs  in  the  supreme  court,  by  circuit  court  commis- 
sioners or  by  the  clerks  of  the  circuit  and  municipal 
courts  respectively,  and  upon  like  notice  as  is  required 
in  the  supreme  court.^^  It  is  also  provided  by  the  statute 
that  costs  in  the  supreme  court  shall  be  taxed  by  one  of 
the  justices  or  the  clerk  thereof,  or"  by  such  officers  as 
the  supreme  court  shall  by  general  or  special  order  desig- 
nate for  that  purpose,  and  upon  such  notice  to  the  oppo- 
site party  as  shall  be  prescribed  by  the  general  rules  of 
the  court."  The  rule  of  the  supreme  court  upon  this  sub- 
ject is  that  costs  shall  be  taxed  by  the  clerk  upon  notice 
of  not  less  than  four  days,  and  that,  if  the  party  upon 
whom  such  notice  is  served  resides  outside  of  the  City  of 
Lansing,  the  time  of  service  of  such  notice  shall  be  in- 
creased one  day  for  every  additional  one  hundred  miles 
distance  or  fraction  thereof  between  his  place  of  resi- 
dence and  the  City  of  Lansing,  but  that  no  notice  need 
be  given  of  more  than  ten  days.  Such  notice  is  required 
to  be  accompanied  by  a  copy  of  the  bill  proposed  to  be 
taxed  and  the  affidavits  to  be  read  in  support  thereof.*^ 

38  Genesee  County  Sav.  Bank  v.  40  Jud.  Act,  ch.  47,  §29;  Comp. 
Ottawa  Circuit  Judge,  54  Mich.  305.       Laws  1915,  §  13710. 

39  Jud.   Act,  ch.  47,    §  30 ;    Comp.  «  Sup.  Ct.  Rule  50. 

Laws   1915,   §  13711 ;    Cir.    Ct.    Rule  The    notice    of   taxation   must   be 

65.  served   on   the  attorney   rather  than 

Taxation    in    supreme    court,    see  the  party   (Green  v.  Kindy,  1  Mich. 

Supreme  Court.  N.   P.   41),   but  is  not   invalid  be- 


440  Costs  §  13 

§13.  Taxation. 

Every  officer  authorized  to  tax  costs  in  any  court  for 
services  rendered  in  any  proceeding  authorized  by  law 
is  required  to  examine  the  bills  presented  to  him  for  tax- 
ation, whether  the  taxation  be  opposed  or  not,  and  should 
be  satisfied  that  the  items  charged  in  the  bill  are  correct 
and  legal.  It  is  his  duty  to  strike  out  all  charges  for 
sendees  which,  in  his  judgment,  were  not  necessary  to  be 
performed.*^  The  taxation  of  costs  implies  an  estimate 
and  allowance  of  items  the  amounts  of  which  are  fixed 
and  certain  or  capable  of  being  rendered  so  by  calcula- 
tion or  evidence,  and  is  ministerial  action  rather  than 
judicial.  It  involves  to  some  degree  the  use  of  judgment 
and  discretion,  like  that  of  auditing  officers,  but  is  noth- 
ing more  than  the  exercise  of  a  ministerial  power."  For 
this  reason,  the  question  of  the  correctness  of  the  taxa- 
tion of  costs  cannot  be  viewed  on  a  writ  of  error.** 

If  the  affidavit  for  the  taxation  of  costs  is  in  compli- 
ance with  the  statute  in  respect  of  fees  for  the  attendance 
of  witnesses,  and  there  is  no  counter  showing,  the  taxing 
officer  must  tax  such  fees ; "  but  items  not  specifically 
covered  by  the  affidavit  should  be  rejected.*^  Costs  paid 
under  an  order  of  court  during  the  progress  of  a  cause, 
or  in  compliance  with  any  statutory  requirement,  cannot 
be  recovered  back  or  taxed  on  the  final  disposition  of 
the  cause.*' 

cause    served   before   judgment   was  v.    Barber    Asphalt    Pav.    Co.,    192 

entered  on  the  verdict,  such  prema-  Mich.  122. 

ture  service  being  a  mere  irregular-  43  Abbott    v.    Mathews,    26    Mich, 

ity   (Murphy  v.  Mulvena,  108  Mich.  176;     People     v.     Jackson     County 

347).  Sup'rs,  31  Mich.  116. 

42Jud.   Act,   ch.   47,   §34;    Comp.  44  Abbott    v.    Mathews,    26    Mich. 

Laws  1915,   §  13715.  176;  Lorman  v.  Phoenix  Ins.  Co.,  33 

Under  the   Michigan   statutes,   in-  Mich.   65. 

terest  on  costs  from  the  date  of  the  45  Sherman  v.  Joslin,  52  Mich.  474. 

judgment  until  they  arc  taxed  can-  46  Maynard    v.    Vinton,    59    Mich. 

not  )>c  allowed,  even  where  a  period  155. 

of  years  intervenes.     City  of  Owosso  47  .Jeffery  v.  Hursh,  58  Mich.  246. 


§  14  Costs  441 

§  14.  Appeal  from  taxation. 

The  taxation  of  costs  by  the  clerk  of  the  court  is  al- 
ways subject  to  re-taxation  by  the  court  on  motion  of 
either  party.  But  on  such  re-taxation,  no  affidavit  or 
objection  which  was  not  presented  to  the  clerk  will  be 
heard  or  allowed  by  the  court.*^ 

When  a  party  appeals  from  the  taxation  of  costs  by 
the  clerk  to  the  circuit  court,  the  party  appealing  should 
specially  except  in  writing  to  such  allowances  or  disal- 
lowances as  he  complains  of,  and  the  bill  of  costs  should 
then  go  before  the  circuit  judge  on  those  exceptions  only 
and  on  the  showing  and  no  other  that  was  made  before 
the  clerk.*^  The  case  should  not  be  remanded  to  the  clerk 
for  new  action,  but  the  taxation  should  be  made  by  the 
court.^" 

Form  of  Affidavit  on  Motion  for  Re-Taxation  of  Costs 

•(Title  of  court  and  cause.) 
County  of ,  ss. 

K.  L.,  the  attorney  for  the  above-named  defendant,  being  duly  sworn, 
deposes  and  says  that  the  bill  of  costs  hereto  annexed  was  served  upon  this 

deponent  on  the day  of ,  A.  D ;  that,  on  the 

day  of ,  A.  D ,  he  attended  before ,  at  the ,  pur- 
suant to  the  notice  thereon  indorsed,  for  the  purpose  of  opposing  the  taxa- 
tion thereof;  and  that  he  then  and  there  opposed  said  taxation  and  objected 
thereto  upon  the  following  grounds:  (Here  state  the  grounds  of  objection 
and  the  particular  items  objected  to.) 

48  Cir.  Ct.  Kule  65.    And  see  Pat-  246,    263,    explained    in    Niblock    v. 

terson  v.  Calhoun  Circuit  Judge,  144  Saginaw    Circuit    Judge,    187    Mich. 

Mich.   416;    Schmidt  v.  Wayne   Cir-  423. 

cuit  Judge,  136  Mich.  658.  49  Sherman  v.  Joslin,  52  Mich.  474. 

Where    objections   are   made    and  50  Hawkins    v.    Fuller,    62    Mich, 

defects  pointed  out,  the  party  apply-  531.     Court  may  permit  a  party  to 

ing  for  a  taxation  should  apply  for  withdraw   his   bill   of   costs   for   the 

a  postponement,  if  he  desires  to  rem-  purpose  of  presenting  a  new  one  to 

edy  the  defects,  or  withdraw  his  bill  the  clerk.     Niblock  v.  Saginaw  Cir- 

and  make  a  new  application;  and  if  cuit  Judge,  187  Mich.  423. 

he  fails  or  neglects  to  do  so,  it  is  too  To  review  the  taxation  of  costs  by 

late  to  do  so  after  the  taxation,  and  the  judge,  mandamus  is  the  proper 

the  items  objected  to  will  stand  re-  remedy.     Townsend  v.  .Tackson  Cir- 

joctod.     Jcffery  v.  Hursh,  58  Mich.  cuit  Judge,  157  Mich.  231. 


442  Costs  §  14 

And  this  deponent  further  says  that,  notwithstanding  his  said  objection, 

the  costs  were  taxed  as  in  said  bill  contained  by  the  said 

Subscribed,  etc.  K.  L. 

§  15.  Payment  and  collection. 

The  costs  ordinarily  become  a  part  of  the  judgment 
and  are  collectible  as  a  part  thereof  by  an  execution 
against  property.  Costs  on  a  former  trial  cannot  be  set 
up  in  reduction  of  the  recovery  claimed  on  a  new  trial.^^ 
Where  a  continuance  granted  on  condition  of  the  pay- 
ment of  costs  has  been  waived,  execution  does  not  lie  to 
enforce  the  order  imposing  costs,'^''  but  where  the  party 
obtaining  the  continuance  remains  silent  until  after  the 
taxation  of  the  costs,  he  cannot  thereafter  contend  that 
the  right  to  a  continuance  was  waived  and  therefore  he 
should  not  be  compelled  to  pay  the  costs."  Where,  in 
denying  a  motion  for  a  non-suit  for  failure  to  pay  costs, 
the  trial  court  modified  the  order  as  to  payment  of  costs 
within  a  limited  time  by  authorizing  the  filing  of  a  bond 
for  past  and  future  costs  to  be  paid  on  the  final  disposi- 
tion of  the  case,  the  failure  to  pay  the  costs  within  the 
time  limited  did  not  give  the  order  the  effect  of  a  final 
order  nor  exhaust  the  discretion  of  the  trial  court  as  to 
its  modification." 

Payment  of  costs  of  a  former  trial  or  review  may  be 
required,  in  the  discretion  of  the  court,  before  a  second 
trial  is  entered  on."  But  it  has  been  held  that  where  a 
trial  has  begun,  it  is  improper  to  refuse  to  allow  defend- 
ant to  introduce  his  defense  because  he  refuses  to  pay 
his  proportion  of  stenographer's  fees." 

61  Millikin  v.  Ferguson,  56  Mich.  55  Clark  v.  Bay  Circuit  Judge,  154 

189.  Mich.   48.3. 

52  People  V.  Wayne  Circuit  Judge,  56  Wheaton      v.      Atlantic      Giant 

40  Mich.  244.  Powder  Co.,  41  Mich.  718. 

63  Barney  v.  Love,  101  Mich.  543. 

64  Goldie    V.    Bay    Circuit    Judge, 
155  Mich.  424. 


Courts  443 

COUNTIES 

Cross-Be ferences:  Venue;  Change  of  Venue;  Garnishment  Execu- 
tions; Judges. 

Whenever  any  controversy  or  cause  of  action  shall  ex- 
ist between  any  of  the  counties  of  this  state,  or  between 
any  county  and  any  individual  or  individuals,  such  pro- 
ceedings shall  be  had  either  in  law  or  equity,  for  the  pur- 
pose of  trying  and  finally  settling  such  controversy,  and 
the  same  shall  be  conducted  in  like  manner,  and  the  judg- 
ment or  decree  therein  shall  have  the  like  effect,  as  in 
other  suits  or  proceedings  between  individuals  and  cor- 
porations.^ Service  of  process  outside  the  county  is  pro- 
vided for  by  statute,^  as  is  the  attachment  of  property 
outside  the  county.^ 

COUNTS 

*  Counts  in  a  declaration  are  the  different  parts  there- 
of, each  of  which,  if  it  stood  alone,  would  constitute  a 
ground  of  action  (McDonald  v.  Hall,  193  Mich.  50,  53, 
and  see  Pleading).  Joinder  of  counts  in  the  declaration 
(see  Joinder  and  Splitting  of  Causes  of  Action)  are  ex- 
pressly authorized  and  the  authority  to  join  enlarged 
by  the  Judicature  Act.  Election  between  counts  is  some- 
times ordered  (see  Pleading). 


COUNTY  CLERKS 

See  Clerks  of  Court;  Mandamus. 

COURTS 

§  1.  Definition. 

§  2.  Nature  of  judicial  power. 

§  3.  In  what  courts  judicial  power  vested. 

§  4.  Courts  of  record  and  not  of  record. 

iJud.   Act,   ch.    20,    §14;    Conip.  2  See  Commencement  OF  ACTIONS. 

Laws  1915,  §  12750.  8  See  Attachment. 


444  Courts  |  1 

§    5.  Courts  of  general  and  courts  of  special  or  limited  jurisdiction. 
§    6.  Jurisdiction. 

§    7.  Where  parties  are  non-residents  or  cause  of  action  arose  outside 

state. 

§    8.  Actions  against  foreign  corporations. 

§    9.  General  powers  of  courts  of  record. 
§  10.  Terms  of  court. 

§11.  Adjournments. 

§  12.  Changing  time  or  place. 

§  13.  Proceedings  on  Sunday  or  legal  holiday. 

§  14.  Proceedings  to  be  in  English  language. 

§  15.  Seal  of  court. 

§  16.  Eight  of  public  to  attend  trials. 

§  17.  Decisions  as  binding. 

Cross-Bcferences:  Supreme  Court;  Circuit  Courts;  Probate  Courts; 
Justices  of  the  Peiace;  Judges;  Circuit  Court  Commissioners;  Trial; 
EuLEs  OF  Court;  Attorneys;  Motions,  Exiles  and  Orders;  Contempt; 
Clerks  of  Court;  Sheriffs. 

§  1.  Definition. 

Courts  are  established  in  civilized  society  to  admin- 
ister, in  a  judicial  manner,  in  proper  instances,  the  ap- 
propriate remedies  which  the  law  prescribes  for  the  in- 
fraction of  legal  or  equitable  rights.  The  word  ''court" 
is  derived  from  the  Latin  cohors,  cohortis,  meaning  an  in- 
closed place.  In  connection  with  jurisprudence,  it  or- 
dinarily signifies  an  organization,  created  by  public  au- 
thority, and  vested  by  law  with  the  power  to  hear  and 
decide  causes  according  to  legally  established  procedure, 
at  times  and  places  appointed  by  law.  A  court  has  also 
been  defined  as  a  tribunal  established  for  the  administra- 
tion of  justice  and  composed  of  one  or  more  judges,  who 
sit  for  that  purpose  at  fixed  times  and  places,  attended 
by  proper  officers;*  also  as  the  presence  of  a  sufficient 
number  of  the  members  of  a  body  in  the  government, 
to  which  the  public  administration  of  justice  is  delegated, 
regularly  convened  in  an  authorized  place  at  an  ap 
pointed  time,  engaged  in  the  full  and  regular  perform- 

1  Mason  v.  Woerner,  18  Mo.  570. 


§  2  Courts  445 

ance  of  its  functions.^  The  term  * '  court ' '  is  also  used  to 
signify  the  judge  or  judges  themselves,  when  duly  con- 
vened, in  contradistinction  from  the  jury,  and  also  in 
contradistinction  from  the  judge  or  judges  at  chambers 
or  when  not  convened  as  a  court.  As  used  in  the  state 
constitution,  the  word  *' courts"  has  been  held  to  mean 
a  permanent  organization  for  the  administration  of  jus- 
tice, and  not  a  special  tribunal  provided  for  by  law,  that 
is  occasionally  called  into  existence  by  particular  ex- 
igencies, and  that  ceases  to  exist  with  such  exigency.' 

The  Industrial  Accident  Board  is  not  a  court,  and  the 
Workmen's  Compensation  Act  is  not  unconstitutional 
on  the  theory  that  it  vests  judicial  power  in  the  Industrial 
Accident  Board.* 

§  2.  Nature  of  judicial  power. 

The  judicial  power  which  courts  exercise  belongs  to 
one  of  the  three  branches  into  which,  in  modem  discus- 
sion and  practice  in  the  most  enlightened  countries,  the 
sovereign  power  is  divided,  namely,  the  legislative,  the 
executive  and  the  judicial.  The  legislative  power  is 
the  power  to  make  laws  and  to  alter  them  at  discretion; 
the  executive  power  is  the  power  to  see  that  the  laws  are 
duly  executed  and  enforced;  and  the  judicial  power  is 
the  power  to  constinie  and  apply  the  law  when  contro- 
versies arise  concerning  what  has  been  done  or  omitted 
under  it.  Legislative  power,  therefore,  deals  mainly  with 
the  future,  and  executive  power  with  the  present,  while 
judicial  power  is  retrospective,  dealing  only  with  acts 
done  or  threatened,  promises  made  and  injuries  suf- 
ered.^    The  difference  between  the  departments  is  that 

2Bouvier  Law  Diet.  tit.  "(Joint";  Renaud  v.  Hi<{^  Court  of  Mediation, 

Wigbtnian  v.  Karsner,  20  Ala.  44G;  124   Mich.   G18. 

Brumley  v.  State,  20  Ark.  77;   Cyc.  4  Mackin    v.    Detroit  Tiiukiii    Axle 

Law  Diet.  tit.  "Court."  Co.,  187  Mich.  8,  18,  26. 

aStreeter  v.   Paton,  7  Mich.  341;  5  Cooloy,   Const.   Law,  43,  44. 
Shurbun   v.    Hooper,   40   Mich.   503; 


446  Courts  §  2 

the  legislative  makes,  the  executive  executes,  and  the 
judiciary  construes,  the  law.^  The  powers  of  govern- 
ment, so  organized  into  three  distinct  departments,  are 
intended  to  be  exercised  without  infringement  by  any 
one  of  them  upon  the  province  of  either  of  the  others. 
The  distinction  between  judicial  and  political  power  is 
universally  recognized  in  the  jurisprudence  both  of  Eng- 
land and  this  country,  and,  as  thus  distinguished,  the 
matters  which  are  of  the  judicial  kind  belong  to  the  judi- 
cial department  of  the  government,  and  those  of  a  politi- 
cal nature  belong  to  the  other  two  and  are  not  the  sub- 
ject of  judicial  cognizance."''  Courts  will  not  decide  ques- 
tions which  belong  to  policy  rather  than  to  law,  and  are 
political  and  not  judicial.®  They  will  not  interfere  with 
the  legitimate  discretion  which  belongs  to  the  other  de- 
partment of  the  government.®  Nor  will  they  tolerate  in- 
terference with  their  powers  by  the  other  departments 
of  the  government.  No  court,  in  the  exercise  of  its  func- 
tions, can  be  lawfully  subjected  to  the  control  or  inter- 
ference of  any  executive  or  ministerial  authority,  nor 
receive  directions  for  any  purpose,  ,except  from  such  other 
courts  as  are  authorized  by  the  constitution  to  have 
'' superintending  control  over  inferior  courts."  No  court 
has  a  right  to  allow  any  other  interference  or  to  submit 
to  it.i° 

The  ex  post  facto  laws,  which  the  parliament  of  Great 
Britain  claimed  and  exercised  the  power  to  pass  under 
the  denomination  of  ''bills  of  attainder"  or  "bills  of 
pains  and  penalties"  were  legislative  judgments,   and 

6  Wayman  v.  Southard,  10  Wheat.  L.  &  P.  Co.  v.  Sands,  95  Mich.  551. 
(TJ.  S.)   1,  45.  Courts  have  no  power  to  review  the 

7  State  of  Georgia  v.  Stanton,  6  acts  of  the  governor  in  removing  an 
Wall.  (U.  S.)   50.  oflScer   for   cause   although   the  pro- 

8  People  V.  Bennett,  29  Mich.  451.  ceeding  is  quasi-judicial.     Germaine 

9  City   of   Detroit   v.    Hosmer,    79  v.  Governor,  176  Mich.  585. 

Mich.  384;   Morton  v.  Detroit,  etc.,  lOAllor   v.    Wayne    County   Audi- 

R.   Co.,   81   Mich.   423;    Citizens'   E.       tors,  43  Mich.   76. 


§  2  Courts  447 

such  acts,  even  if  not  expressly  prohibited  by  the  federal 
and  the  state  constitutions,  would  be  held  invalid  in  this 
country,  as  being  an  attempted  infringement  by  the  legis- 
lative department  upon  the  judicial  power.^^ 

By  the  judicial  power  of  courts  is  generally  under- 
stood the  power  to  hear  and  determine  controversies  be- 
tween adverse  parties,  and  questions  in  litigation.^^  Dis- 
cretionary and  judicial  powers  are  often  convertible 
terms  and  there  are  many  acts  requiring  the  exercise  of 
judgment  which  may  be  fairly  said  to  be  of  a  judicial 
nature,  and  yet,  in  no  sense,  coming  within  the  judicial 
power  as  applied  to  courts.^^  The  broadest  definition 
ever  given  to  judicial  power  confines  it  to  controversies 
between  conflicting  parties  in  interest.^*  But  the  judi- 
cial power,  even  when  used  in  its  widest  and  least  ac- 
curate sense,  involves  the  power  to  hear  and  determine 
the  matters  to  be  disposed  of,  and  this  can  only  be  done 
by  "Some  order  or  judgment  which  needs  no  additional 
sanction  to  entitle  it  to  be  enforced.  It  is  the  inherent 
authority,  not  only  to  decide,  but  to  make  binding  or- 
ders and  judgments,  which  constitutes  judicial  power. 
Therefore,  no  action  which  is  merely  preparatory  to  an 
order  or  judgment  to  be  rendered  by  some  different  body 
can  be  properly  termed  '^ judicial."  Thus,  a  master  in 
chancery  often  has  occasion  to  consider  questions  of  law 
and  of  fact,  but  no  one  ever  supposed  him  to  possess 
judicial  power.  A  jury  in  a  court  of  record  determines 
all  the  facts  in  the  cause,  but  the  judicial  power  is  in  the 
court  which  enforces  the  verdict  by  judgment.    So,  the 

llCalder  v.  Bull,  3  Dall.  (U.  S.)  App.  Div.  196;  Musser  v.  Adair,  55 

386.  Ohio  St.  466. 

12  Maekin  v.  Detroit-Timkiu   Axle  13  Daniels  v.  People,  6  Mich.  381 ; 

Co.,    187    Mich.    8,    19;    Daniels    v.  State  v.  LeClair,  86  Me.  522. 
People,     6    Mich.    381;     Osborn    v.  14  Lloyd    v.    Chambers,    56    Mich. 

United  States  Bank,  9  Wheat.    (U.  236;  De  Camp  v.  Archibald,  50  Ohio 

S.)  738;  Durham  v.  Lewiston,  4  Me.  St.  618. 
140;   Walker  v.  Maxwell,  68  N.  Y. 


448  Courts  §  2 

judicial  power  is  not  exercised  by  a  referee  in  determin- 
ing facts  in  a  cause  submitted  to  him,  but  by  the  court 
in  giving  judgment."  And  the  power  to  take  bail  is 
not  a  judicial  power,  in  the  sense  in  w^hich  the  term  is 
used  as  applied  to  courts.^^  The  power  to  examine  and 
commit  persons  charged  with  crime  is  not  judicial." 
But  the  removal  of  a  person  from  his  office  for  cause  in- 
volves the  exercise  of  judicial  power."  So  do  proceed- 
ings for  the  dissolution  of  attachments." 

§  3.  In  what  courts  judicial  power  vested. 

The  constitution  provides  that  the  judicial  power  shall 
be  vested  in  one  supreme  court,  circuit  courts,  probate 
courts,  justices  of  the  peace  and  such  other  courts  of 
civil  and  criminal  jurisdiction,  inferior  to  the  supreme 
court,  as  the  legislature  may  establish  by  general  law,  by 
a  two-thirds  vote  of  the  members  elected  to  each  house.*" 
The  legislature  may  also  provide  for  the  election  of  one 
or  more  persons  in  each  organized  county,  who  may  be 
vested  with  judicial  powers  not  exceeding  those  of  a 
judge  of  the  circuit  court  at  chambers.'^^  Thus,  the  con- 
stitution vests  the  judicial  power  in  certain  specified 
courts,  and  it  cannot  be  legally  vested  elsewhere.'^^ 

Various  provisions,  however,  vesting  power  of  a  quasi- 
judicial  nature  in  various  boards  or  individual  officers 
have  very  properly  been  sustained  as  constitutional.*' 

16  Underwood       v.  McDuffee,     15  250,000  is  local  and  unconstitutional. 

Mich.   361.  Attorney  General  v.  Lacy,  180  Mich. 

16  Daniels  v.  People,  6  Mich.  381.  329. 

17  Allor    V.    Wayne    County   Audi-  21  Const.   Art.   VII,   sec.   21. 
tors,  43   Mich.  76.  22  Andrews    v.    Otsego    Judge    of 

18  People  V.  Stuart,  74  Mich.  411.  Probate,  74  Mich.  278;   Chandler  v. 

19  Chandler  v.  Nash,  5  Mich.  409.  Nash,   5   Mich.   409;    Ames  v.   Port 

20  Const.  Art.  VII,  sec.  1.  Huron  L.  D.  &  B.  Co.,  11  Mich.  139; 
Special  as  distinguished  from  gen-       Allor  v.  Wayne  County  Auditors,  43 

eral   laws  cannot  create   courts,  un-  Mich.  76. 

der  the  Michigan  Constitution;   and  23  See  People  v.  Brazee,  183  Mich, 

hence  a  statute  creating  a  court  of  259;  People  v.  Stuart,  74  Mich.  411; 

domestic  relations  in  counties  of  over  Attorney     General    v.     Jochim,     99 


§  5  Courts  449 

§  4.  Courts  of  record  and  not  of  record. 

Courts  of  record  are  those  whose  acts  and  judicial  pro- 
ceedings are  enrolled  or  recorded  for  a  perpetual 
memorial  and  testimony.  Courts  not  of  record  comprise 
those  inferior  tribunals  whose  proceedings  are  not  for- 
mally enrolled  or  recorded.  Courts  of  record  are  also 
characterized  as  having  a  clerk  and  a  seal  by  which  their 
proceedings  are  authenticated.  All  of  the  courts  of  this 
state  having  a  seal  are  declared  by  statute  to  be  courts 
of  record.^*  The  supreme  court,  the  circuit  courts,  and 
the  probate  courts,  are,  by  the  constitution,  declared  to 
be  courts  of  record,  and  each  of  them  is  required  to  have 
a  seal.^^ 

§  5.  Courts  of  general  and  courts  of  special  or  limited 
jurisdiction. 
Courts  are  also  distinguished  as  courts  of  general  juris- 
diction and  courts  of  special  or  limited  jurisdiction, — 
limited  either  as  to  the  value  or  the  nature  of  the  pleas 
which  they  are  authorized  to  entertain  or  as  to  the  ter- 
ritory or  district  over  which  their  authority  extends. 
Courts  of  general  jurisdiction  are  those  whose  jurisdic- 
tion extends  to  all  cases  comprised  within  a  class  or 
classes  of  causes,  especially  to  causes  of  a  civil  nature.^° 
The  circuit  courts  of  this  state  have  general  original 
jurisdiction  of  all  civil  and  criminal  matters  not  excepted 
in  the  constitution  and  not  prohibited  by  law.^' 

Mieh.  358;  People  v.  Therrien,  80  eral  v.  Renihan,  184  Mich.  272,  279, 
Mieh.  187;  McLaughlin  v.  Bur-  holding  Superior  Court  of  Grand 
roughs,  90  Mich.  311 ;  Attorney  Gen-  Rapids  a  court  of  record, 
eral  v.  Detroit  Common  Council,  112  26  Grace  v.  American  Cent.  Ins. 
Mich.  145;  Zimmer  v.  Bay  County  Co.,  109  U.  S,  278;  Ex  parte  Round- 
Sup 'rs,  159  Mich.  213.  tree,  51  Ala.  42. 

24Jud.    Act,    ch.    4,    §1;     Comp.  27  Const.   Art.   VII,   see.   10;    Jud. 

Laws  1915,   §12248.  Act,   ch.   6,    §1;    Comp.   Laws   1915, 

25  Const.  Art.  VII,  sec.  17.  §12299;     Swift    v.    Wayne    Circuit 

This  enumeration  of  courts  of  rec-  Judges,    64    Mich.    479;    People    v. 

ord  is  not  exclusive.     Attorney  Gen-  Kent  Circuit  Judge,  37  Mich.  372- 

1  Abbott— 29 


450  Courts  §  5 

It  will  be  presumed,  in  favor  of  a  judgment  of  a  court 
of  general  jurisdiction,  rendered  in  a  proceeding  accord- 
ing to  the  course  of  the  common  law,  that  the  jurisdic- 
tion of  the  parties  was  duly  obtained.^®  In  special  pro- 
ceedings not  according  to  the  course  of  the  common  law, 
and  in  courts  of  special  or  limited  jurisdiction,  there  is 
no  presumption  in  favor  of  jurisdiction,  but  the  facts 
essential  to  confer  it  must  affirmatively  appear  on  the 
face  of  the  proceedings.''® 

§  6.  Jurisdiction. 

By  the  "jurisdiction"  of  a  court  is  meant  the  power 
to  hear  and  deteraiine  causes  or  matters  within  the  limits 
established  by  law  for  the  exercise  of  that  power.  The 
word  has  generally  been  defined  simply  as  the  power  to 
hear  and  determine  causes,  but  it  has  been  alleged,  with 
some  weight  of  reason,  that  this  is  somewhat  too  broad, 
in  that  jurisdiction  does  not  embrace  the  power  to  de- 
termine in  any  manner  whatsoever,  but  only  by  the  rendi- 
tion of  such  a  judgment  or  order  as  the  court  has  power 
to  render  in  the  class  of  cases  to  which  the  case  before 
it  belongs,  and  that  the  definition  generally  given  should 
be  qualified  accordingly.  By  this  is  not  meant  that,  in 
order  for  a  court  to  be  within  its  jurisdiction,  it  must 
render  a  judgment  that  is  right  as  between  the  parties 
and  which  an  appellate  court  would  not  reverse  upon  a 
proper  proceeding,  but  that  the  judgment,  whether  right 

Union  Depot  Co.  v.  Backus,  92  Mich,  29  Gould    v.    Jacobson,    58    Mich. 

33;     Thompson    v.    Michigan    Mut.  288;   Goodrich  v.  Burdick,  26  Mich. 

Benefit  Ass'n,  52  Mich.  522.  39;  Piatt  v.  Stewart,  10  Mich.  260; 

Circuit  courts   are   courts   of   lim-  Galpin   v.    Page,    18    Wall.    (U.    S.) 

ited    but    not    inferior    jurisdiction.  365;  Chandler  v.  Nash,  5  Mich.  409; 

Ward    V.     Cozzens,     3     Mich.     252,  Jones  v.  Keed,  1  Johns.  Cas.  (N.  Y.) 

quoted  in  Thomas  v.  Rosecrantz,  193  20;   Powers  v.  People,  4  Johns.   (N. 

Mich.  357.  Y.)   292;   Hartford  Fire  Ins.  Co.  v. 

28  Arnold   v.   Nye,   23   Mich.   286;  Owen,  30   Mich.   441;   Greenvault  v. 

Wilcox    V.    Kassick,    2    Mich.    165;  Farmers'     &     Mechanics'     Bank,    2 

Clark  V.  Holmes,  1  Doug.  390 ;  In  re  Doug.  498. 
Lewis,  124  Mich.  199. 


§  6  Courts  451 

or  wrong  as  between  the  parties  and  whether  or  not  it 
would  be  reversed  in  a  proper  appellate  proceeding,  must 
be  such  as  the  court  might  render  in  the  class  of  cases 
to  which  the  one  in  hand  belongs.  Thus,  if,  in  an  action 
of  assumpsit,  the  court  should  render  a  judgment  for 
the  plaintiff,  when  rightfully,  as  between  the  parties,  *it 
should  have  rendered  a  judgment  for  the  defendant,  the 
error  in  such  determination  of  the  case  would  not  make 
the  judgment  jurisdictionally  defective,  although  it 
might  be  reversed  upon  an  appellate  proceeding;  but  if, 
in  such  an  action  at  law,  the  court  should  enter  a  judg- 
ment attempting  to  enforce  the  specific  performance  of 
the  contract  sued  upon,  the  judgment,  being  one  which 
the  court  would  have  no  power  to  render  in  that  class  of 
cases,  would  be  affected  by  a  lack  of  jurisdiction  and 
would  be  subject  to  successful  attack,  not  only  in  an  ap- 
pellate proceeding  brought  directly  for  the  purpose,  but 
ako  collaterally  in  any  proceeding  in  which  the  validity 
of  the  judgment  might  come  into  question.  From  these 
considerations,  it  is  well,  and  perhaps  in  harmony  with 
the  more  advanced  thought  upon  the  subject,  to  adopt 
the  definition  as  given.*" 

Original  or  primary  jurisdiction  is  jurisdiction  in  the 
first  instance,  and  is  the  power  which  the  court  exer- 
cises in  a  cause  which  was  commenced  in  it.  Appellate 
jurisdiction  is  the  power  to  review  the  judgment,  order 
or  decree  of  an  inferior  tribunal,  for  the  purpose  of  dis- 
covering and  correcting  errors  which  appear  there  to 
have  been  committed  in  the  adjudication  of  the  cause. 

30  12  Am.  &  Eng.  Ene.  Law  246;  St.   627;    Jones   v.   Brown,   54   Iowa 

Windsor  v.  McVeigh,  93  U.  S.  274;  74;    Cornett   v.   Williams,    20   Wall. 

Ex  parte  Watkins,  3   Pet.    (U.  S.)  (U.S.)  226;  Laugdon  v.  Wayne  Cir- 

193;     Ex    parte    Parks,    93    U.     S.  cuit   Judges,  76   Mich.  358;   Daniels 

18;    Ex  parte  Lange,  18  Wall.    (U.  v.  People,  6  Mich.  381;  Underwood 

S.)    163;   Ex  parte  Reed,  100  U.  S.  v.  McDuffee,  15  Mich.  361;   Mutual 

13;    Ex    parte    Yarbrough,    110    U.  Fire   Ins.   Co.   v.   Phoenix  Furniture 

S.   651;    Hopkins  v.   Com.,   3   Mete.  Co.,  108  Mich.  170. 
(Mass.)   462;   Mills  v.  Com.,  13  Pa. 


452  Courts  |  6 

Exclusive  jurisdiction  is  that  which  belongs  only  to  a 
particular  court  or  class  of  courts.  Exclusive  jurisdic- 
tion is  necessarily  original,  although  original  jurisdic- 
tion is  not  necessarily  exclusive,  but  may  be  concurrent 
also.  ConcuiTcnt  or  co-ordinate  jurisdiction  is  such  as 
is  not  limited  to  one  particular  class  of  courts,  but  be- 
longs indiscriminately  to  two  or  more  courts  of  different 
classes.  Where  there  is  concurrent  jurisdiction,  the  right 
to  maintain  jurisdiction  attaches  to  that  tribunal  that 
first  exercises  it.^^  A  court  has  no  power  to  interfere  in 
a  matter  pending  in  another  court  of  co-ordinate  juris- 
diction,^^ and  one  court  cannot  enjoin  another.^'  The 
jurisdiction  of  a  common  law  court  is  not  necessarily 
ousted  because  there  is  a  specific  remedy  in  equity  but 
it  may  exercise  its  discretion  where  the  circumstances 
call  for  prompt  interference  by  the  courts.^* 

Consent  cannot  confer  jurisdiction  of  the  subject  mat- 
ter,^^  but  can  of  the  person. ^^ 

Want  of  jurisdiction  of  the  subject  matter  cannot  be 
waived,^'  even  where  the  nature  of  the  action  is  local  or 
any  element  of  locality  is  necessary  to  the  jurisdiction.^' 
But  jurisdiction  of  the  person  can  be  waived  by  failure 
to  urge  it.^®  So  any  want  of  jurisdiction  because  of  failure 
to  obtain  leave  of  court  to  file  an  information  in  the  na- 
ture of  quo  warranto  may  be  waived  w^here  the  court  has 
jurisdiction  of  the  subject  matter.*** 

31  Shields  v.  Riopelle,  63  Mich.  50  Mich.  54;  Hull  v.  Hull,  149  Mich. 
458;  Griffis  v.  Stoddard,  2  Mich.  500;  Kirkwood  v.  Hoxie,  95  Mich. 
N.  P.  37.  62. 

32  Maclean  v.  Wayne  Circuit  36  Cof  rode  v.  Wayne  Circuit 
Judge,  52  Mich.  257.  Judge,  79  Mich.  332. 

33  People  V.  Superior  Court  Judge,  37  Moore  v.  Ellis,  18  Mich.  77; 
41  Mich.  31.  Ferrand  v.  Bentley,  6  Mich.  281. 

34  Tawas  &  B.  C.  R.  Co.  v.  loseo  88  Thompson  v.  Michigan  Mut. 
Circuit  Judge,  44  Mich.  479.  Ben.  Ass'n,  52  Mich.  522. 

35  J.  F.  Hartz  Co.  v.  Lukaszcewski,  89  Stilson  v.  Greeley,  2  Mich.  N. 
200  Mich.  230;  Bolton  v.  Cummings,  P.  222. 

200   Mich.    234 ;    Nichols   v.   Flanni-  40  Attorney  General  v.  A.  Booth  & 

gan,  185  Mich.  654;  Hagar  v.  Coup,       Co.,  143  Mich.  89. 


§  7  Courts  453 

§  7.  Where  parties  are  non-residents  or  cause  of 

action  arose  outside  state. 

Circuit  courts,  having  jurisdiction  of  tlie  subject-mat- 
ter, and  of  the  persons  of  tlie  parties,  will  take  cognizance 
of  suits  even  though  both  the  plaintiff  and  the  defendant 
are  non-residents  of  the  state.  But  a  distinction  is  to 
be  made  in  suits  of  this  kind,  based  upon  the  question 
whether  the  cause  of  action  arose  within  this  state  or 
outside  of  it.  In  suits  between  non-residents,  where  the 
cause  of  action  arose  outside  of  the  state,  our  courts  may, 
and  usually  do,  upon  principles  of  comity,  entertain  juris- 
diction,^^ but  they  are  not  compellable  to  proceed  in  such 
cases.*^ 

Where,  however,  the  cause  of  action  arose  within  this 
state,  the  court,  having  jurisdiction  of  the  subject-matter 
and  the  persons  of  the  parties,  is  compellable  to  pro- 
ceed.*^ Article  4,  Sec.  2,  of  the  constitution  of  the  United 
States,  declares  that  '^the  citizens  of  each  state  shall  be 
entitled  to  all  the  privileges  and  immunities  of  citizens 
in  the  several  states,"  and  this  is  constiiied  to  require 
(among  other  things)  that  citizens  of  other  states  in  the 
Union  shall  have  the  right  to  bring  suit  in  the  several 
courts  of  this  state  having  jurisdiction,  it  being  a  priv- 
ilege belonging  to  every  citizen  of  this  state.**  This  juris- 
diction cannot  be  taken  away  by  any  legislation  limiting 
the  forum  of  the  action  to  the  county  in  which  plaintiff 
resides.*^  A  court  of  a  sister  state  which  has  acquired 
jurisdiction  of  the  parties  and  the  subject-matter  has 
the  power  to  adjudicate  the  rights  of  all  the  parties  in 

41Cofrode    v.    Gartner,    79    Mich.  ;5:'.2;    Jud.   Act,   ch.   10,    §1;    Comp. 

332;    Newland    v.   Eeilly,    85    Mich.  Laws   1915,    §12340;    Grand   Trunk 

151;    Thompson    v.    Michigan    Mut.  R.  Co.  v.  Wayne  Circuit  Judge,  106 

Ben.  Ass'n,  52  Mich.  522.  Mich.  248. 

42  Great  Western  Ry.  Co.  v.  Mil-  44  Cof  rode  v.  Gartner,  79  Mich, 
ler,    19    Mich.    305;    Mason    v.    The  332. 

Blaireau,  2  Cranch   (U.  S.)   240.  45  Atkins  v.  Rorstler,  46  Mich.  552. 

43  Cofrode    v.    Gartner,    79    Mich. 


454  Courts  §  7 

real  property  involved  although  part  of  it  is  situated  in 
this  state.*® 

Actions  upon  commercial  paper  are  transitory,  and 
the  creditor  may  pursue  and  sue  the  debtor  in  any  state 
where  his  person  or  property  can  be  found.*'' 

§  8.  Actions  against  f areig:n  corporations. 

A  foreign  corporation  may  be  sued  in  this  state,"  and 
jurisdiction  is  obtained  by  service  of  process  as  provided 
for  by  the  statutes.*®  However,  as  to  foreign  corpora- 
tions not  admitted  to  do  business  in  the  state,  it  is  held 
that  jurisdiction  cannot  be  conferred  by  statute  to  render 
a  personal  judgment  where  process  is  served  upon  an 
officer  casually  in  the  state  and  not  representing  the  cor- 
poration.^" 

§  9.  General  powers  of  courts  of  record. 

The  several  courts  of  this  state  having  a  seal  are  courts 
of  record,  and  they  respectively  have  power: 

(1).  To  issue  process  of  subpoena,  requiring  the  at- 
tendance of  any  witness  residing  or  being  in  any  part 
of  this  state,  to  testify  in  any  matter  or  cause  pending 
or  triable  in  such  courts. 

(2).  To  administer  oaths  to  witnesses  in  any  such  mat- 
ter or  cause  and  in  all  other  cases  where  it  may  be  neces- 
sary in  the  exercise  of  the  powers  and  duties  of  such 
courts. 

(3).  To  devise  and  make  such  new  writs  and  forms  of 
proceedings  as  may  be  necessary  to  carry  into  effect  the 
powers  and  jurisdiction  possessed  by  them." 

They  are  also,  by  statute,  empowered  to  punish  for 
contempts,  either  by  fine  or  by  imprisonment,  or  both, 

46Dunlap  V.  Byers,  110  Mich.  109.  60  Matthews  v.  Montreal  Min.  Co., 

47  Millar  v.  Hilton,  189  Mich.  635.  183  Mich.  541,  and  cases  cited. 

48  See  Corporations.  61  Jud.    Act,    ch.    4,    §  1 ;    Comp. 

49  See     Commencement    of     Ac-  Laws  1915,  §  12248. 

TIONS. 


§  10  Courts  455 

in  their  discretion.^^  The  power  to  correct  purely  clerical 
errors  in  its  records  is  inherent  in  courts  of  general  juris- 
diction." 

§  10.  Terms  of  court. 

The  terms  of  court  are  those  stated  times  of  the  year 
which  are  established  by  competent  authority  for  the  dis- 
patch of  business  in  the  superior  courts  of  common  law. 
In  very  early  times,  it  was  the  custom  of  the  Christian 
magistrates  to  hear  and  decide  causes  through  the  whole 
year,  every  day  alike,  in  order  to  distinguish  themselves 
as  much  as  possible  from  the  heathens,  who  were  strict 
in  the  observance  of  their  days  of  fasting  and  of  feast. 
But,  at  length,  the  church  interposed  and  exempted  cer- 
tain holy  seasons  from  being  profaned  by  the  tumult  of 
forensic  litigations.  The  holy  seasons  thus  exempted,  of 
which  there  were  four,  became  the  vacations  and  divided 
the  year,  which  before  had  been  a  continual  term,  into 
four  separate  terms.  Sundays  and  certain  festal  days 
were  included  in  the  same  prohibition.  The  division  of 
the  year  into  terms  was  afterwards  confinned  by  the  laws 
of  the  realm  and  became  a  permanent  feature  of  the  judi- 
cial system  which,  to  this  day,  obtains  both  in  England 
and  this  country. 

There  are  four  terms  each  year  both  in  the  supreme 
court  and  in  the  circuit  courts.  Before  the  Judicature 
Act,  circuit  courts  were  required  to  make  an  order  every 
two  years  fixing  the  time  for  holding  the  terms  of  court 
for  the  next  two  years.  This  was  required  to  be  pub- 
lished at  the  expense  of  the  state  and  the  order  was  un- 
changeable for  two  years.  This  has  been  changed  by  the 
Judicature  Act  so  that  the  orders  existing  at  the  time  the 
act  takes  effect  shall  stand  until  revoked,  but  the  court 
may  at  any  time  by  a  journal  order  change  the  time,  such 

62  See  Contempt.  53  Walsh  v.  Colby,  153  Mich.  602. 


456  Courts  §  10 

change  not  to  be  effective  until  the  expiration  of  three 
months  from  the  date  of  the  order.^* 

Whenever  at  the  close  of  any  term  of  any  circuit  court, 
the  trial  of  a  cause  shall  be  in  progress,  such  trial  shall 
continue  until  the  same  is  determined,  and  the  trial  shall 
not  be  construed  as  prolonging  said  tenn,  nor  to  prevent 
the  commencement  of  the  succeeding  term.^^ 

§  11.  Adjournments. 

'  *  If  from  any  cause  the  judge  of  any  circuit  or  superior 
court  shall  fail  to  attend  on  the  first  day  or  any  succeed- 
ing day  of  any  term,  said  court  shall  stand  adjourned  un- 
til the  next  day  in  which  court  may  be  lawfully  held,  and 
shall  stand  adjourned  from  day  to  day  until  a  judge  law- 
fully authorized  to  hold  said  court,  shall  be  in  attendance. 
Said  courts  at  law  and  in  chancery,  shall  on  all  lawful 
days  and  times  be  deemed  to  be  in  actual  session  from  the 
first  day  of  any  term  until  the  first  day  of  the  next  suc- 
ceeding term,  notwithstanding  any  formal  adjournment 
thereof:  And,  if  any  judge  authorized  to  hold  such  court, 
shall  at  any  time  be  in  attendance  thereon,  he  shall  have 
full  power  to  hear,  try  and  determine  all  causes,  matters 
and  proceedings  within  the  jurisdiction  of  said  court 
which  may  in  a  lawful  manner  be  brought  before  him. 
Judges  of  circuit  courts  may  hold  court  for  each  other.^^ 

''All  causes  and  matters,  of  whatsoever  name  or  kind, 
pending  at  any  term  of  any  circuit  court,  which  shall  not 
have  been  held  because  of  the  absence  of  the  circuit  judge, 
shall  stand  continued  till  the  next  term;  and  all  persons 
bound  by  recognizance  or  otherwise  to  appear  at  any  such 
court,  either  as  witnesses  or  parties  to  any  proceedings 
cognizable  therein,  shall  be  bound  to  appear  at  the  next 

SiJud.    Act,    ch.    7,    §2;     Comp.  56  Jud.    Act,    eh.    7,     §5;     Comp. 

Laws  1915,  §  12304.  Laws  1915,  §  12307. 

55  Jud.   Act,   ch.   18,   §52;    Comp. 
Laws  1915,  §  12624. 


§  13  CouETS  457 

term  of  the  circuit  court  appointed  to  be  held  in  the  coun- 
ty; and  all  such  recognizances  shall  continue  in  force  and 
be  as  binding  and  obligatory  on  the  parties  thereto  as  if 
no  failure  of  a  term  had  occurred,  unless  a  new  recogni- 
zance, approved  according  to  law,  shall  be  entered  into 
for  such  appearance. "  ^''^ 

§  12.  Changing  time  or  place. 

The  statutes  of  the  state  appoint,  or  provide  for  the  ap- 
pointment of,  the  time  and  place  for  holding  every  court 
of  record,  but  whenever,  by  reason  of  war,  pestilence  or 
other  public  calamity,  it  is  deemed  unsafe  or  inexpedient 
to  hold  any  court  at  the  time  and  place  appointed,  or 
whenever  there  is  no  court  house  in  the  county  or  the 
court  house  is  for  any  cause  unsafe  or  unfit  for  the  hold- 
ing of  any  court,  the  judge  or  judges  of  the  court  may  ap- 
point any  other  place  and  time  within  the  same  county  as 
a  temporary  place  for  holding  it.^^  Such  order  is  re- 
quired to  be  in  writing,  signed  by  the  judge  or  judges 
making  it,  and  must  be  published  by  advertisement  or  in 
such  other  manner  as  shall  be  required  in  the  order. ^® 

§  13.  Proceedings  on  Sunday  or  legal  holiday. 

It  is  provided  by  law  that  none  of  the  courts  of  this 
state  shall  be  open  or  transact  any  business  on  the  first 
day  of  the  week,  unless  it  be  for  the  purpose  of  instruct- 
ing or  discharging  a  jury  or  of  receiving  a  verdict,  but 
this  does  not  prevent  the  exercise  of  the  jurisdiction  of 
any  single  magistrate  when  it  is  necessary  in  criminal 
cases  to  preserve  the  peace  or  to  arrest  offenders.^®    No 

B7Jud.    Act,    eh.  7,    §6;     Comp.       Laws  1915,  §  12259;  Linnen  v.  Ban- 
Laws  1915,  §  12308.  field,  114  Midi.  9.".;   Smith  v.  Ihling, 

SSJml.    Act,    ch.  7,    §3;     Comp.       47  Mich.  614. 

Laws  1915,  §  12305.  At  common  law,  a  return  of  an  ex- 

B9Jud.    Act,    ch.  7,    §4;    Comp.      ecution  on  Sunday  is  void.     Peck  v. 

Laws  1915,  §  12306.  Cavell,  16  Mich.  9.    See  also  Macom- 

60,Tud.    Act,    ch.  4,    §12;    Comp.       her  v.  Wright,  108  Mich.  109. 


458  Courts  §  13 

civil  process  can  be  served  or  executed  on  that  day,  nor 
can  any  process  be  served  on  any  elector  entitled  to  vote 
at  any  election  during  the  day  on  which  such  election  is 
held,^^  except  that,  upon  sufficient  cause  being  shown  by 
affidavit  to  the  satisfaction  of  a  judge  of  any  circuit,  such 
judge  may  authorize  the  service  or  execution  thereof  on 
Sunday  or  any  legal  holiday  or  election  day.^^  Upon  such 
showing,  such  judge  may  also  authorize  the  issuance  of 
any  civil  process  on  any  such  day.^' 

For  the  holding  of  courts,  the  following  days  are  to  be 
treated  and  considered  as  the  first  day  of  the  week,  viz. : 
The  first  day  of  January,  commonly  called  New  Year's 
Day;  the  twelfth  day  of  February,  commonly  called  Lin- 
coln's Birthday;  the  twenty-second  day  of  February,  com- 
monly called  Washington's  Birthday;  the  thirtieth  day 
of  May,  commonly  called  Decoration  Day;  the  fourth  day 
of  July;  the  first  Monday  of  September,  commonly  called 
Labor  Day;  the  twenty-fifth  day  of  December,  commonly 
called  Christmas  Day;  every  Saturday  from  twelve 
o'clock  noon  until  twelve  o'clock  at  night;  all  national, 
state,  county  or  city  election  days  and  any  day  appointed 
or  recommended  by  the  governor  of  the  state  or  the 
President  of  the  United  States  as  a  day  of  fasting  and 
prayer  or  thanksgiving;  but,  in  case  the  return  or  adjourn 
day  in  any  suit,  matter  or  hearing  before  any  court,  offi- 
cer, referee  or  arbitrators  comes  on  any  of  these  days,  ex- 
cept Sunday,  such  suit,  matter  or  proceeding  will  not 
abate,  but  will  stand  continued  to  the  next  succeeding 
day  at  the  same  time  and  place,  unless  the  next  day  is  the 
first  day  of  the  week  or  a  holiday,  in  which  case,  it  will 
stand  continued  to  the  next  day  succeeding  the  first  day 
of  the  week  or  holiday  at  the  same  time  and  place.^* 

eiJud.   Aet,   oh.   13,    §25;    Comp.  63  Jud.   Act,   ch.   13,    s26;    Comp. 

Laws  1915,  §  12428;  Shriver  v.  Bean,  Laws   1915,   §  12429.     Compare,  un- 

112  Mich.  508.  rler  old  practice,  Smith  v.  Ihling,  47 

62  Jud.   Act,   oh.    13,   §26;    Comp.  Mich.  614. 

Laws  1915,  §12429.  64  Pub.   Acts   1909,  No.   246,    §1; 


§  15  Courts  459 

If  the  first  day  of  the  general  term  of  any  circuit  court, 
as  fixed  by  the  order  of  a  circuit  judge,  falls  upon  any  of 
these  days,  and  whenever  any  circuit  court  has  been  ad- 
journed to  any  such  day,  the  court  may  be  adjourned  to 
the  next  succeeding  secular  day.^*  Whenever  the  first 
day  of  January,  the  twelfth  day  of  February,  the  twenty- 
second  day  of  February,  the  thirtieth  day  of  May,  the 
fourth  day  of  July  or  the  twenty-fifth  day  of  December 
falls  upon  Sunday,  the  next  Monday  following  is  deemed 
a  public  holiday  for  all  of  the  purposes  aforesaid.^® 

§  14.   Proceedings  to  be  in  English  language. 

The  constitution  ^"^  requires  that  the  written  judicial 
proceedings  shall  be  conducted,  promulgated  and  pre- 
served in  the  English  language;  and  the  legislature  has 
enacted  that  all  writs,  process,  proceedings  and  records 
in  any  court  within  this  state  shall  be  in  that  language, 
except  that  the  proper  and  known  names  of  process  and 
technical  words  may  be  expressed  in  the  language  com- 
monly used.®^  Writs,  process,  proceedings  and  records 
should  be  made  out  on  paper  or  parchment  in  a  fair, 
legible  character,  in  words  at  length  and  not  abbreviated, 
although  such  abbreviations  as  are  commonly  used  in  the 
English  language  may  be  used,  and  numbers  may  be  ex- 
pressed by  Arabic  figures  or  Roman  numerals.^® 

§  15.  Seal  of  court. 

Each  of  the  several  courts  of  record  is  required  to  have 
a  seal.  With  this,  the  proceedings  of  the  court  are  au- 
thenticated. Whenever  the  seal  of  a  court  is  so  injured 
that  it  cannot  be  conveniently  used,  the  court  may  cause 

Comp.  Laws  1915,  §  6232,  as  amend-  67  Const.  Art.  XVI,  sec.  6. 

ed  by  Pub.   Acts  1919,  No.   335.  68  Jud.    Act,    ch.    4,    §13;    Comp. 

66  Pub.   Acts   1909,   No.  246,   8  1;  Laws  1915,  §12260;  Visscher  v.  Ot- 

Comp.  Laws  1915,  §  6232,  as  amend-  tawa  Circuit  Judge,  116  Mich.  666; 

ed  by  Pub.  Acts  1919,  No.  335.  Schaale   v.    Wasey,   70   Mich.   414. 

66  Pub.   Acts   1909,  No.   246,    §2;  69  Jud.    Act,    ch.    4,    §13;    Comp. 

Comp.  Laws  1915,  §  6233.  Laws  1915,  §  12260. 


460  CouETS  §  15 

it  to  be  destroyed.  If  it  should  be  lost  or  destroyed,  the 
court  may  cause  a  new  one  to  be  made,  similar  in  all  re- 
spects to  the  former  one,  which  then  becomes  the  seal  of 
the  court.''" 

§  16.  Right  of  public  to  attend  trials. 

Every  citizen  has  the  right  to  attend  sittings  of  every 
court  which  are  required  to  be  public,  except  that  minors 
may  be  excluded  where  scandal  or  immorality  is  in- 
volved.'^ 

§  17.  Decisions  as  binding. 

Decisions  of  the  supreme  court  are  binding  on  the  low- 
er courts.  But  where  propositions  of  law  might  have 
been  urged  but  were  not  urged,'''^  or  were  not  considered,'^ 
the  decision  is  not  binding  as  a  precedent  as  to  such 
proposition.  In  other  words,  a  case  is  authority  only  on 
the  questions  actually  decided.'* 

Dicta,  although  entitled  to  respect,  will  not  control  as  a 
precedent.'*  It  is  entitled  to  no  greater  weight  than 
would  be  given  it  as  an  expression  of  an  opinion  of  the 
justice  writing  the  opinion.'^ 

The  supreme  court  should  not  overrule  a  former  de- 
cision merely  because  the  case  was  decided  wrong  where 
more  injuiy  will  result  from  overruling  than  from  follow- 
ing it."  Especially  should  decisions  be  adhered  to  where 
property  rights  have  been  acquired  thereunder." 

70  Jud.    Act,    ch.    4,    §  3 ;     Conip.  75  Ellsworth  v.  Hall,  48  Mich.  407. 

Laws  1915,   §  12250.  76  Detroit  Lumber  Co.  v.  The  Pe- 

71Jud.  Act,  ch.  4,  §§5,  6;   Comp.  tivl,  153  Midi.  528. 

Laws  1915,  §§12252,  12253.  77  McEvoy   v.   City   of   Sault   Ste. 

72  Cosgrove  v.  Wayne  Circuit  Marie,  136  Mich.  172;  Attorney  Gen- 
Judge,  144  Mich.  682.  eral  v.  Board  of  Sup'rs,  178  Mich. 

73  Miller  v.  Village  of  Birming-  513,  518.  See  also  Colborne  v.  De- 
ham,  145  Mich.  170;  Moinet  v.  Burn-  troit  United  Ry.,  177  Mich.  139,  142. 
ham,  Stoepel  &  Co.,  143  Mich.  489;  78  Reid  v.  Wayne  Circuit  Judge, 
Atwood  V.  City  of  Sault  Ste.  Marie,  132    Mich.   406. 

141  Mich.  295. 

74  First  Nat.  Bank  v.  Union  Trust 
Co.,   158   Mich.   94. 


Covenant,  Action  of  461 

A  decision  by  an  equally  divided  court  does  not  settle 
the  law  for  other  cases ;  ''^  but  where  one  of  the  eight  jus- 
tices of  the  supreme  court  was  disqualified  so  that  only 
seven  participated  in  a  decision  concurred  in  by  a  ma- 
jority of  the  seven,  the  decision  was  stare  decisis. ^° 

The  effect  of  judgments  declaratory  of  the  rights  aris- 
ing under  deeds,  wills,  etc.,  is  considered  elsewhere.*^ 

The  decisions  of  the  courts  of  sister  states  are  not  bind- 
ing,®^ but  are  entitled  to  great  respect  where  involving 
the  validity  of  a  similar  statute  and  generally  are  con- 
trolling where  the  statute  in  this  state  was  enacted  after 
such  decisions. ^^  However,  where  a  statute  adopted  from 
another  state  requires  aid  from  the  common  law,  the 
judicial  interpretation  of  the  statute,  given  by  the  courts 
of  that  state,  does  not  bind  the  courts  of  this  state  to  the 
extent  of  determining  the  rule  of  common  law  applicable 
to  the  statute.®* 

The  construction  given  an  act  of  congress  by  a  federal 
court  should  control  subsequent  decisions  of  the  state 
courts.®^ 

COVENANT,  ACTION  OF 

The  action  of  covenant  lies  for  the  recovery  of  damages 
for  the  breach  of  a  covenant  or  contract  under  seal.  It 
could  not  be  maintained  except  against  a  person,  who,  by 
himself  or  his  agent,  had  executed  an  instrument  under 
seal;  but  the  covenant  might  be  express  or  implied  from 
the  terms  of  the  instrument,  and  might  be  for  the  per- 
formance of  something  in  futuro  or  that  something  had 
been  done.     In  some  cases  also,  it  was  sustainable  al- 

79  Gourlay    v.    Insurance    Co.    of  82  Caldwell  v.  Gale,  11  Mich.  77. 

North  America,  189  Mich.  384;  City  83  Rouse,  Hazard  &  Co.  v.  Dono- 

of  Kalamazoo  v.  Crawford,  154  Mich.  van,  102  Mich.  234. 
58.  84  Bliss    V.    Caille   Bros.    Co.,    149 

80Doli)h    V.     Norton,     158     Mich.  Mich.  601. 
417.  85  Lyon  v.  Clark,  124  Midi.  100. 

81  See  Judgments. 


462  Covenant,  Action  of 

though  the  covenant  related  to  matter  in  present!,  as  that 
the  covenantor  is  seized  and  has  good  title,  though  it  is 
said  that,  in  general,  covenant  would  not  lie  on  a  contract 
in  presenti,  as  on  a  covenant  to  stand  seized  or  that  a  cer- 
tain horse  is  yours  or  shall  henceforth  be  the  property  of 
another.^ 

The  action,  being  for  the  recovery  of  damages  for  the 
non-performance  of  a  contract  under  seal,  differed  very 
materially  from  the  actions  of  assumpsit  and  debt.  As- 
sumpsit, though  for  the  recovery  of  damages,  was  not  in 
general  sustainable  where  the  contract  was  originally 
under  seal  or  where  a  deed  had  been  taken  in  satisfaction; 
and  though  debt  was  sustainable  upon  a  simple  contract, 
a  specialty,  a  record  or  a  statute,  yet  it  lay  only  for  the 
recovery  of  a  sum  of  money  in  numero,  and  not  where  the 
damages  were  unliquidated  and  incapable  of  being  re- 
duced by  averment  to  a  certainty ;  and  though,  where  the 
object  of  the  action  of  covenant  was  the  recovery  of  a 
money  demand,  the  distinction  between  the  terms  "dam- 
ages," and  ''money  in  numero,"  may  not,  on  first  view, 
appear  substantial,  yet  it  is  material  and  gave  rise  to 
certain  rules  which  the  practitioner  must  regard.  Cove- 
nant and  debt  were  concurrent  remedies  for  the  recovery 
of  any  money  demand,  where  there  was  an  express  or  im- 
plied contract  in  an  instrument  under  seal  to  pay  it;  but 
covenant  was  the  peculiarly  appropriate  action  for  the 
nonperformance  of  a  contract  under  seal,  where  the  dam- 
ages were  unliquidated,  in  which  case  neither  debt  nor 
assumpsit  could  be  supported.^ 

By  statute  in  Michigan,  the  action  of  covenant  has  been 
abolished,  and  in  all  cases  where  formerly  that  action 
might  have  been  maintained,  the  action  of  assumpsit 
must  be  brought.^ 

1  Littler  v.  Holland,  3  T.  R.  590 ;  2  1  Chit.  PI.  132. 

Mitchell  V.  St.  Andrew's  Bay  Land  3  Jud.    Act,    ch.    11,    §1;     Comp. 

Co.,  4  Fla.   200;    Gale  v.  Nixon,   6  Laws  1915,  §  12350. 
Cow.  (N.  Y.)  746. 


Crops  463 

COWS 

See  Animals;  Exemptions. 

CREDIBILITY 

See  Witnesses;  Instructions. 

CREDITOR'S   SUIT 

See  Executions;  Supplementary    Proceedings. 

CRIER 

The  statute  provides  that  the  supreme  court  may  ap- 
point a  crier  for  the  court,  who  shall  hold  his  office  during 
the  pleasure  of  the  court.^  The  crier  may,  with  the  con- 
sent of  the  court,  appoint  an  assistant,  who  performs  such 
duties  as  the  court  prescribes.^  The  crier  has  sole  charge 
of  the  supreme  court  room  and  of  the  rooms  assigned  to 
th«  justices  of  the  supreme  court  in  the  capitol,  and  must 
perform  such  other  duties  as  shall  from  time  to  time  be 
required  by  the  court.'  Upon  filing  with  the  clerk  of  the 
court  such  bond  as  is  required  by  law  to  be  given  by 
sheriffs,  to  be  approved  by  the  chief  justice,  the  crier  is 
empowered  to  serve  all  orders,  process  or  writs  issued 
from  the  supreme  court,  for  which  service  he  is  required 
to  collect  the  fees  allowed  by  law  to  sheriffs,  but  any  and 
all  fees  collected  by  the  crier  must  be  paid  into  the  state 
treasury.* 

CRIMINAL  LAW 

See  Mandamus;  Habeas  Corpus. 

CROPS 

See  Executions;  Exemptions;  Trover. 

IJud.    Act,    ch.    1,  §42;    Comp.  3  Jutl.    Act,    ch.    1,    §42;    Comp. 

Laws  1915,  §  12047.  Laws  1915,  §  12047. 

2Jucl.    Act,    ch.    1,  §42;    Comp.  4  Jud.    Act,    ch.    1,    §43;    Comp. 

Laws  1915,  §  12047.  Laws  1915,  §  12048. 


464  Cross-Examination 

CROSS-EXAMINATION 

See  Witnesses. 

CUMULATIVE    REMEDIES 

See  Election  op  Eemedies. 

CUSTODY 

See  Attachment;  Execution;  Replevin. 

DAMAGES 

See  Pleading;  Commencement  of  Actions  (statement  as  to  in  affidavit 
for  capias);  Verdict  and  Findings;  Replevin;  Instructions;  New- 
Trial;  Mandamus;  Contempt;  Executions;  Error,  Writ  of;  Ejectment. 

DATE 

See  Affidavits;  Pleading;  Bill  of  Particulars;  Garnishment;  Su- 
preme Court. 


See  Time. 


See  Replevin. 


DAY 

DEAD  BODIES 

DEATH 


See  Abatement  and  Revival;  Parties;  Judges;  Limitation  of  Ac- 
tions; Bill  of  Exceptions;  Executions;  Homesteads;  Bail;  Eject- 
ment; Pleading;  Error,  Writ  of. 

DEATH  BY  WRONGFUL  ACT 

Cross-Eeferences:    Joinder  and  Splitting  of  Causes  of  Action. 

At  common  law,  no  civil  action  could  be  maintained  for 
the  death  of  a  human  being  caused  by  the  wrongful  act 
or  negligence  of  another,  or  for  any  damages  suffered  by 
any  person  in  consequence  of  such  death. ^  This  rule  was 
changed  in  England  by  what  is  known  as  "Lord  Camp- 
bell's Act,"  under  the  provisions  of  which  a  right  of  ac- 

1  Hyatt  V.  Adams,  16  Mich.  180. 


Death  by  Wkongful  Act  465 

tion  for  damages  for  the  death  of  a  person  injured  by  the 
wrongful  act,  neglect  or  default  of  another  was  given  to 
near  relatives, — husband,  wife,  parent,  child.  In  Mich- 
igan, it  has  been  provided  by  a  statute,  commonly  called 
the  ''death  act,"  that,  whenever  the  death  of  a  person 
shall  be  caused  by  wrongful  act,  neglect  or  default,  and 
the  act,  neglect  or  default  is  such  as  would  (if  death  had 
not  ensued)  have  entitled  the  party  injured  to  maintain 
an  action  and  recover  damages  in  respect  thereof,  then 
and  in  every  such  case,  the  person  who,  or  the  corporation 
which,  would  have  been  liable  if  death  had  not  ensued, 
shall  be  liable  to  an  action  for  damages,  notwithstanding 
the  death  of  the  person  injured,  and  although  the  death 
shall  have  been  caused  under  such  circumstances  as 
amount  in  law  to  felony.  Every  such  action  must  be 
brought  by,  and  in  the  name  of,  the  personal  representa- 
tives of  such  deceased  person,  and  the  amount  recovered 
in  every  such  action  must  be  distributed  to  the  persons 
in  the  proportions  provided  by  law  in  relation  to  the  dis- 
tribution of  personal  property  left  by  persons  dying  in- 
testate. In  every  such  action,  the  jury  may  give  such 
damages  as  they  deem  fair  and  just,  with  reference  to  the 
pecuniary  injury  resulting  from  such  death,  to  those 
persons  who  may  be  entitled  to  such  damages  when  re- 
covered.'^ 

By  a  statute,  usually  referred  to  as  the  ' '  survival  act, ' ' 
certain  actions,  including  actions  for  personal  injuries, 
survive  the  death  of  the  injured  party.'  By  the  statute 
referred  to  as  the  "death  act,"  if  the  death  of  a  person 

2  How.     Stat.     (2na    ed.)     13702,  Co.,  176  Mich.  413 ;  Wingert  v.  Car- 

13703,     6663,     6664;     Comp.     Laws  penter,    101    Mieh.    395;    Nelson    v. 

191.5,     §§14577,     14578;     Hyatt    v.  Lake  Shore,  etc.,  R.  Co.,  104  Mich. 

Adams,  16  Mich.  180;  Chicago,  etc.,  582;  Walker  v.  Lake  Shore,  etc.,  R. 

R.    Co.   V.    Bayfield,   37    Mich.    205;  Co.,    104    Mich.    606;    Swectland    v. 

Kelly    V.    Hendrie,    26    Mich.    255;  Chicago,  etc.,  R.  Co.,  117  Mich.  329. 

Flint,  etc.,  R.  Co.  V.  Stark,  38  Mich.  3  Jud.    Act,    ch.    12,    §32;    Comp. 

714;   Richardson  v.  Detroit,  etc.,  R.  Laws  1915,  §  12383. 
1  Abbott— 30 


466  Death  by  Wrongful  Act 

shall  be  caused  by  a  wrongful  act,  and  the  person  injured 
could  have  sued  therefor  if  death  had  not  ensued,  the 
wrongdoer  is  liable  to  the  personal  representatives  of  the 
deceased  person.*  The  latter  statute  is  applicable  only  to 
cases  of  instantaneous  death,*  and  where  death  is  not  in- 
stantaneous the  action  should  be  brought  under  the  so- 
called  * '  survival  act. ' '  ^  But  death  is  instantaneous, 
within  the  statute,  where  there  is  a  continuing  injury  re- 
sulting in  death  within  a  few  moments 


7 


'& 


A  cause  of  action  under  the  *' survival  act"  and  one 
under  the  ''death  act"  cannot  exist  at  the  same  time  for 
the  same  injury.*  The  ''death  act"  creates  a  new  right 
of  action,  unknown  to  the  common  law,  authorizing  dam- 
ages with  reference  strictly  to  the  pecuniary  injury  suf- 
fered by  certain  beneficiaries,  while  the  "survival  act" 
effects  a  continuance  of  the  right  of  action  that  had  vested 
in  the  decedent,  with  such  damages  as  he  could  have  re- 
covered, including  the  present  worth  of  his  probable  fu- 
ture earnings  had  he  lived.' 

Under  the  "death  act,"  no  recovery  can  be  had  by 
married  children  of  the  decedent  where  they  were  not 
legally  entitled  to  support  from  him.^" 

4Coinp.  Laws  1915,  §§14577,  Boyne  City,  etc.,  E.  Co.,  178  Mich. 
14578.  694. 

6  Jorgensen  v.  Grand  Kapids,  etc.,  »  Jorgenson  v.  Grand  Rapids  &  I. 

R.  Co.,  189  Mich.  537.  K.    Co.,    189    Mich.   537;    Lincoln   v. 

6  Jorgensen  v.  Grand  Rapids,  etc.,      Detroit  &  M.  R.  Co.,  179  Mich.  189. 

An  administrator  cannot  combine 


R.  Co.,  189  Mich.  537. 

7  Beach  v.  City  of  St.  Joseph,  192 
Mich.  296  (death  by  drowning  is  in- 
stantaneous death)  ;  Lobenstein  v. 
Whitehead,  etc..  Iron  Co.,  179  Mich. 
299;    West   v.   Detroit    United    Ry., 


in  one  count  a  claim  under  the  so- 
called  death  act  and  a  claim  under 
the  survival  act  and  recover  both 
classes  of  damages.  Causes  of  ac- 
tion by  a  parent  for  loss  of  his  son's 

services    cannot    be    ioined    in    the 

1.59  Mich.  269   (death  within  fifteen  *      -xi,  ^      4.- 

^  same  count  with  a  cause  of  action  as 

minutes  after  being  struck  by  street  administrator  under  the  survival  act. 

car);    Olivier   v.    Houghton    County  Verlinde  v.  Michigan  Cent.  R.   Co., 

St.  R.  Co.,  134  Mich.  367.  165  Mich.  371,  375. 

•  Jorgensen  v.  Grand  Rapids  &  I.  lOOrmsbeo  v.  Grand  Trunk  West- 

R.  Co.,  189  Mich.  537;   Mehegan  t.  ern  R.   Co.,  197  Mich.  576. 


Declaratory  Judgments  467 

DEBT,  ACTION  OF 

The  action  of  debt  is  so  called  because  it  is,  in  legal 
consideration,  for  the  recovery  of  a  debt  eo  nomine  and 
in  numero,^  and  though  damages  were  in  general  awarded 
for  the  detention  of  the  debt,  yet,  in  most  instances,  they 
were  merely  nominal,  and  were  not,  as  in  assumpsit  and 
covenant,  the  principal  object  of  the  suit.**  It  differed 
from  these  actions  also  in  that  it  was  maintainable  upon 
either  a  simple  contract  or  a  specialty,  and  in  that  it  lay 
in  the  detinet  for  goods,  as,  for  example,  upon  a  contract 
to  deliver  a  quantity  of  malt.  But  debt  in  the  detinet  dif- 
fered from  the  action  of  detinue  in  that  it  was  not  neces- 
sary, in  order  to  sustain  it,  that  the  property  in  any  spe- 
cific goods  should  be  vested  in  the  plaintiff  at  the  time 
the  action  was  brought,  which  was  essential  in  detinue.* 

Debt  in  the  debet  was  not  in  any  case  sustainable  un- 
less the  demand  was  for  a  sum  certain  or  for  a  pecuniary 
demand  which  could  readily  be  reduced  to  a  certainty, — 
that  is,  a  liquidated  demand.* 

The  action  of  debt  has  been  abolished  in  this  state  by 
statute.  In  all  cases  where  the  action  might  formerly 
have  been  maintained,  assumpsit  must  be  brought.* 

DECISIONS 

See  CoxjKTS;  Judges;  Supreme  Court;  Veedict  and  Findings;  Judg- 
ment, 

DECLARATION 

See  Pleading. 

DECLARATORY  JUDGMENTS 

See  Judgments. 

13  Coolcy's  Bl.  Comm.  153;  Mel-  8  Respubliea    v.    Shaffer,    1    Dall. 

vin  V.   State,  121   Cal.  16;    Cassady  (U.  S.)  236. 
V.  Laughlin,  3  Blackf.   (Ind.)   134.  4  Gregory  v.  Bewly,  5  Ark.  318. 

2  1  Chit.  PI.  121;  Ross  v.  Taylor,  6  Jud.    Act,    ch.    11,    §1;    Comp. 

63  111.  215.  Laws  1915,  §  12350.     See  Actions. 


468  Deeds  §  1 

DEEDS 

§  1.  Proving  execution. 

§  2.  Procedure  where  grantor  refuses  to  acknowledge  deed. 

§  3.  Subpoenas  to  witnesses. 

§  4.  Filing  copy  pending  proceedings  to  prove  execution  thereof. 

§  5.  Certificate  of  proof  of  execution. 

Cross-Beferences:  Mortgages;  Executions;  Pleading;  Judgments 
(declaratory  of  construction). 

§  1.  Proving  execution. 

Ill  Michigan,  conveyances  of  lands  or  of  any  estate  or 
interest  therein  may  be  made  by  deed,  signed  and  sealed 
by  the  person  from  whom  the  estate  or  interest  is  in- 
tended to  pass,  being  of  lawful  age,  or  by  his  lawful  agent 
or  attorney,  and  acknowledged  or  proved  and  recorded 
according  to  law,  without  any  other  act  or  ceremony 
whatever.^  Deeds  of  conveyance  in  this  state  are  recorded 
in  the  office  of  the  register  of  deeds  of  the  county  where 
the  lands  conveyed  are  situated,  and  it  is  provided  that  a 
certificate  of  the  acknowledgment  of  any  deed,  or  of  the 
proof  of  the  execution  thereof  before  a  court  of  record  or 
justice  of  the  peace,  signed  by  the  clerk  of  the  court  or  by 
the  justice  before  whom  the  same  was  taken,  shall  entitle 
such  deed,  with  the  certificate,  to  be  recorded  in  the  office 
of  the  register  of  deeds  of  the  county  where  the  lands  lie.'^ 
It  is  not  necessary  that  a  deed  should  be  acknowledged ' 
or  the  execution  thereof  proved  nor  that  it  should  be 
recorded  *  in  order  to  be  a  perfectly  valid  deed  and  to  pass 
the  title  from  the  grantor  to  the  grantee.  In  fact,  the 
certificate  of  acknowledgment  or  of  proof  is  not  part  of 
the  deed  itself.     But  the  importance  of  having  a  deed 

IHow.    Stat.     (2nd    ed.)     10818;  4  Wilt    v.    Cutler,    38    Mich.    189 

Comp.  Laws  1915,   §  11688.  Brown  v.  McCormiek,  28  Mich.  215 

2  How.    Stat.     (2nd    ed.)     10840;  Sinclair  v.   Slawson,  44  Mich.   123 

Comp.  Laws  1915,  §  11710.  Gugins    v.    Van    Gorder,    10    Mich 

8  Livingston    v.    Jones,    Har.    Ch.  523 ;  Smith  v.  Fiting,  37  Mich.  148 

165 ;  Brown  v.  McCormiek,  28  Mich.  Van  Husan  v.  Hoanies,  96  Mich.  504 
215;  Price  v.  Haynes,  37  Mich.  487. 


§  2  Deeds  469 

recorded,  so  far  as  the  grantor  or  person  claiming  under 
iiim  is  concerned  (for  the  grantor,  having  divested  him- 
self of  the  title,  has  no  interest  whatever  in  the  matter), 
lies  in  the  fact  that  the  statute  declares  that  every  con- 
veyance of  real  estate  within  this  state  which  is  not  re- 
corded will  be  void  against  any  subsequent  purchaser  in 
good  faith  and  for  a  valuable  consideration  of  the  same 
real  estate  or  any  portion  thereof  whose  conveyance  is 
first  duly  recorded;^  and  the  importance  of  having  the 
deed  acknowledged  or  proved,  and  the  acknowledgment 
or  proof  embodied  in  a  certificate  appended  to  the  deed, 
lies  in  the  fact  that  the  deed  is  not  entitled  to  record  un- 
less accompanied  with  such  a  certificate,  and  the  fact  that, 
if  a  deed  is  recorded  without  such  certificate,  such  un- 
authorized record  is  notice  to  no  one.^  The  object  of  all 
registry  laws  is  to  protect  bona  fide  purchasers.''^ 

§  2.  Procedure  where  grantor  refuses  to  acknowl- 
edge deed. 
It  is  provided  that,  if  any  grantor  residing  in  this  state 
shall  refuse  to  acknowledge  his  deed,  the  grantee  or  any 
person  claiming  under  him  may  apply  to  any  justice  of 
the  peace  in  the  county  where  the  land  lies  or  where  the 
grantor  or  any  subscribing  witness  to  the  deed  resides, 
who  shall  thereupon  issue  a  summons  to  the  grantor  to 
appear  at  a  certain  time  and  place  before  the  justice,  to 
hear  the  testimony  of  the  subscribing  witnesses  to  the 
deed.  The  summons,  with  a  copy  of  the  deed  annexed, 
must  be  served  at  least  seven  days  before  the  time  therein 
assigned  for  proving  the  deed.^  At  the  time  mentioned 
in  the  summons  or  at  any  time  to  which  the  hearing  may 
be   adjourned,  the  due   execution   of  the   deed  may  be 

5  How.    Stat.     (2na    ed.)     10850;       260;    Columbia  Bank  v.  Jacobs,   10 
Comp.    Laws    1915,    §11721.  Mich.   ;549;   Duttou  v.  Ives,  5  Mich. 

6  Dutton    V.    Ives,    5    Mich.    515;       515. 

Galpin  V.  Abbott,  6  Mich.  17.  8  How.    Stat.     (2nd    ed.)     10833; 

TGodfroy   v.   Disbrow,  Walk.  Ch.       Comji.  Laws  1915,  §11703. 


470  Deeds  §  2 

proved  by  the  testimony  of  one  or  more  of  the  subscrib- 
ing witnesses,  and,  if  proved  to  the  satisfaction  of  the 
justice,  it  is  his  duty  to  certify  the  same  thereon  and,  in 
such  certificate,  to  note  the  presence  or  absence  of  the 
grantor,  as  the  fact  may  be.® 

It  is  provided  that,  if  any  grantor  residing  in  this  state 
shall  refuse  to  acknowledge  his  deed,  and  the  subscribing 
witnesses  thereto  are  all  dead  or  out  of  the  state,  it  may 
be  proved  before  any  court  of  record  of  the  state,  by  prov- 
ing the  handwriting  of  the  grantor  or  of  any  subscribing 
witness,  the  court  first  summoning  the  grantor  in  the 
manner  specified  in  cases  where  the  proof  is  to  be  made 
before  a  justice  of  the  peace. ^° 

Form  of  Summons  on  Petition  for  Proving  Execution  of  Deed  Wlierv 
Subscribing  Witnesses  Are  Dead  or  Out  of  State 

State  of  Michigan. 

The  Circuit  Court  for  the  County  of    

In  the  Name  of  the  People  of  the  State  of  Michigan. 
To  C.  D.: 

You  are  hereby   notified  that   a  petition  has   been  filed  in  the  circuit 

court  for  the  county  of   ,  by  A.  B.,  of   ,  for  the  purpose  of 

proving  the   execution   by  you  of  a  certain  deed   of   conveyance,  bearing 

date  the day  of   ,  A.  D ,  whereby,  as  it  is  said,  you 

granted,  bargained,  sold,  remised,  released,  aliened  and  confirmed  unto 
the  said  A.  B.,  his  heirs  and  assigns  forever,  (describe  the  property). 
You  are  therefore  hereby  summoned  to  be  and  appear  before  said  court, 

at  the  court  house,  in  the of ,  in  said  county,  on  the 

day  of   ,  A.  D ,  at    o  'clock  in  the    noon,  to 

hear  the  testimony  of  such  witnesses  as  may  be  produced  by  the  said 
A.  B.  in  that  behalf. 

Witness,  etc. 

Form  of  Petition  for  Proving  the  Execution  of  a  Deed 

State  of  Michigan. 

The  Circuit  Court  for  the  County  of   

To  said  Court: 

The  petition  of  A.  B.,  of   ,  respectfully  shows  unto  the  court  as 

follows : 

1.  That  C.  D.,  of   ,  in  the  State  of  Michigan,  in  the  presence  of 

E.  F.  and  G.  H.,  as  subscribing  witnesses  thereto,  made  and  executed   a 

»How.    Stat.     (2nd    ed.)     10834;  10  How.    Stat.    (2nd    ed.)     10835; 

Comp.   Laws   1915,    §  11704.  Comp.  Laws  1915,  §  11705. 


§  4  Deeds  471 

certain  deed  of  conveyance,  bearing  date  the day  of ,  A.  D. 

,  whereby  the  said  C.  D.  granted,  bargained,  sold,  remised,  released, 

aliened  and  confirmed  unto  your  petitioner,  his  heirs  and  assigns  forever, 
(describe  the  property). 

2.  That  the  said  C.  D.  has  never  acknowledged  said  deed  and,  on  the 
day  of ,  A.  D ,  although  then  requested  by  your  peti- 
tioner so  to  do,  did  refuse. 

3.  That  the  said  E.  F.  and  G.  H.  are  dead  (or,  out  of  this  state). 
Wherefore,  your  petitioner  prays  that  the  execution  of  said  deed  may 

be  proved  before  this  court  by  proving  the  handwriting  of  the  said  C.  D. 
or  of  one  of  the-  said  subscribing  witnesses  thereto  according  to  the  statute 
in  such  case  made  and  provided. 

(Add  verification.)  A.  B. 

§  3.  Subpoenas  to  witnesses. 

The  court  or  justice  before  whom  a  deed  may  be  pre- 
sented to  be  proved  may  issue  subpoenas  to  the  subscrib- 
ing witnesses  or  others,  as  the  case  may  require,  to  ap- 
pear and  testify  touching  the  execution  of  the  deed.  Such 
subpoenas  may  be  served  in  any  part  of  the  state. ^^ 

Eveiy  person  who,  being  served  with  such  subpoena, 
refuses  or  neglects  without  reasonable  cause  to  appear 
or,  appearing,  refuses  to  answer  on  oath  touching  the  mat- 
ters in  question  will  be  liable  to  the  injured  party  in  the 
sum  of  one  hundred  dollars  damages  and  for  such  further 
damages  as  the  party  may  sustain  thereby;  and  he  may 
also  be  committed  to  prison  as  for  contempt  by  the  court 
or  justice  who  issued  the  subpoena,  there  to  remain  until 
he  submits  to  answer  upon  oath.^^ 

§  4.  Filing:  copy  pending  proceedings  to  prove  execu- 
tion thereof. 

Any  person  interested  in  a  deed  that  is  not  acknowl- 
edged may,  at  any  time  before  or  during  the  application 
to  a  court  of  record  or  the  proceedings  before  a  justice  to 
prove  its  execution,  file  in  the  office  of  the  register  of 
deeds  of  the  county  where  the  lands  are  situated  a  copy 

11  How.    Stat.    (2nd    cd.)     10836;  12  How.    Stat.    (2nd    cd.)     10837; 

Conip.  Laws  1915,  §  11706.  Conip.  Laws  1915,  §  11707. 


472  Deeds  §  4 

of  the  deed,  compared  with  the  original  by  the  register, 
and  this  will,  for  the  space  of  thirty  days  thereafter  in 
case  of  proceedings  before  a  justice,  and,  in  case  of  pro- 
ceedings before  a  court  of  record,  for  the  space  of  ten  days 
after  the  first  day  of  the  next  term  of  the  court,  have  the 
same  effect  as  the  recording  of  the  deed,  if  the  deed  is 
within  that  time  duly  proved  and  recorded;"  but  if,  at 
the  expiration  of  such  thirty  days,  the  proceedings  for 
proving  the  execution  of  the  deed  are  pending  before  a 
justice  of  the  peace,  the  effect  of  filing  such  copy  will 
continue  until  the  expiration  of  seven  days  after  the 
termination  of  the  proceedings,  if  the  deed  is  within  that 
time  duly  proven  and  recorded.^* 

§  5.  Certificate  of  proof  of  execution. 

A  certificate  of  the  proof  of  execution  of  the  deed  be- 
fore a  court  of  record  or  justice  of  the  peace,  signed  by 
the  clerk  of  the  court  or  by  the  justice  before  whom  the 
proof  was  taken,  will  entitle  the  deed,  with  the  certificate, 
to  be  recorded  in  the  office  of  the  register  of  deeds  of  the 
county  where  the  lands  lie.^^ 

Form  of  Order  on  Proof  of  Execution  of  a  Deed 
In  the  Matter  of  Proving  a  Deed  of  Conveyance  from  C.  D.  to  A.  B. 

The  said  A.  B.  having  presented  to  this  court  a  certain  deed  of  con- 
veyance, bearing  date  the day  of    ,  A.  D ,  whereby 

the  said  C.  D.  granted,  bargained,  sold,  remised,  released,  aliened  and  con- 
firmed unto  the  said  A.  B.,  his  heirs  and  assigns  forever,  (describe  the 
property),  and  the  said  A.  B.  having  filed  his  petition  in  this  court  pray- 
ing that  said  deed  might  be  proved  according  to  the  statute  in  such  case 
made  and  provided,  and  the  said  C.  D.  having  been  duly  summoned  to  be 
and  appear  before  the  court  on  this  day  to  hear  the  testimony  of  such 
witnesses  as  might  be  produced  by  the  said  A.  B.  in  that  behalf,  after 
hearing  the  proofs  and  allegations  of  the  parties,  and  it  appearing  to  the 
court   that   the    said   deed   was  duly   executed   and   delivered   by   the   said 

13  How.    Stat.    (2ml    ed.)     10838;  15  How.    Stat.     (2nd    ed.)    10840; 

Comp.  Laws  1915,  §  11708.  Comp.  Laws  1915,  §  11710. 

14 How.    Stat.    (2nd    ed.)    10839; 
Comp.  Laws,  1915,  §  11709. 


§  1  Defaults  473 

C.  D.  to  the  said  A.  B.  in  the  presence  of  E.  F.  and  G.  H.,  the  subscribing 
witnesses  thereto,  and  that  the  said  C.  D.  refused  to  acknowledge  the  exe- 
cution of  said  deed  when  thereunto  requested  and  that  the  said  subscrib- 
ing witnesses  are  dead  (or,  out  of  this  state) ;  now,  therefore,  on  motion 
of  the  said  A.  B.,  it  is  adjudged  and  determined  that  the  said  C.  D.  did 
execute  the  said  deed  as  his  own  free  act  and  deed,  and  it  is  further  ordered 
that  the  clerk  of  this  court  do  certify  the  same  by  indorsing  upon  said 
deed  a  certified  copy  of  this  order. 

DEFAULTS 

§    1.  When  may  be  entered  and  its  effect. 

§    2.  Default  of  part  of  defendants. 

§    3.  Withdrawing  plea  without  substituting  another. 

§    4.  Proof  to  authorize  entry  of. 

§    5.  Rule  making  default  absolute. 

§    6.  Eeference  to  assess  damages. 

§    7.  Opening  default. 

§    8.  Time  for  motion. 

§    9.  Affida^dt  of  merits. 

§  10.  Conditions  on  granting  application. 

§  11.  Discretion  of  court  and  review  thereof. 

Cross-references :    Error,  Writ  of  (effect  of  reversal  as  to  one  defend- 
ant as  setting  aside  default) ;   Confession  of  Judgment;   Cognovit;  Of- 
fer OF  Judgment;    Payment  Into  Court;    Tender;    Garnishment   (de- 
fault of  garnishee);   Ejectment;   Quo  Warranto;   Mandamus;   Attach- 
ment;  Ejectment;   Bail;   Replevin. 

§  1.  When  may  be  entered  and  its  effect. 

The  respective  times  within  which  the  pleadings  in  a 
cause,  whether  commenced  by  original  writ,  declaration, 
writ  of  attachment  or  writ  of  replevin,  are  required  to 
be  filed  and  served  upon  the  adverse  party  are  elsewhere 
considered,^  not  only  in  respect  to  declarations,  but  also 
in  regard  to  pleas,  and  it  has  also  been  stated  within  what 
time  a  defendant  is  required  to  give  notice  of  his  appear- 
ance or  notice  of  retainer.^  By  statute,  ''upon  due  proof 
of  service  of  any  declaration  or  process  requiring  an  ap- 
pearance, answer  or  plea,"  a  default  may  be  filed  or  en- 
tered against  the  defendant  for  want  of  such  appearance, 

1  See  PLKiVDING. 

8  See  Appearance. 


474  Defaults  §  1 

answer,  or  plea,  within  the  time  provided  by  law  or  by 
rule  of  court,  and  ''the  same  proceedings  may  be  had 
against  said  defendant  in  all  respects  as  if  he  had  ap- 
peared, answered  or  plead  thereto,"  provided  that  "no 
judgment  shall  be  rendered  against  a  foreign  corporation 
based  upon  such  default  until  the  expiration  of  sixty 
days  from  the  service  of  process."  ^ 

By  rule  of  court,  if  either  party  makes  default  in  filing 
or  serving  any  pleading  or  notice  within  the  time  limited 
by  rule  or  statute  or  by  the  special  order  of  the  court  in 
the  case,  the  opposite  party  may  file  the  default,  in  vaca- 
tion or  in  term.  The  default  of  either  party  being  duly 
filed,  the  other  party  will  not  be  bound  afterwards  to  ac- 
cept the  pleading  or  proceeding  which  was  in  default, 
until  such  default  is  set  aside  by  the  court.* 

The  filing  of  a  defendant's  default  in  not  putting  in  and 
perfecting  special  bail,  after  which  the  defendant  loses 
the  right  to  put  in  and  perfect  special  bail  and  to  contest 
the  plaintiff's  claim  upon  the  merits,  is  only  the  formal 
expression  of  the  plaintiff's  determination  to  rely  upon 
the  breach  of  the  condition  of  the  bond  taken  on  the  ar- 
rest of  the  defendant,  and  a  commencement  of  suit  upon 
such  bond  is  equally  effectual  for  that  purpose.*^ 

If  a  defendant  makes  default  in  pleading,  he  thereby 
admits  the  plaintiff's  cause  of  action  as  alleged  in  the 
declaration,^  so  as  to  relieve  the  plaintiff  of  the  necessity 
of  adducing  proof  thereof,  but  he  admits  no  other  or 
further  cause  of  action.'  He  also  thereby  waives  all  mere- 
ly formal  defects  in  the  plaintiff's  declaration,"  but  not 
any  ground  of  objection  to  the  jurisdiction  of  the  court, 
either  over  the  person  of  the  defendant  or  of  the  subject- 

3Jud.    Act.    eh.    20,    §1;    Comp.  Greeley    v.    Sample,    22    Iowa    338; 

Laws  1915,  §  12737.  May    v.    State    Bank,    9    Ind.    233; 

4Cir.  Ct.  Eule  32,  §1.  Ilutchings  v.  Ebeler,  46  Cal.  557. 

6  Pease  v.  Pendell,  57  Mich.  315,  7  Mimn  v.  Haynes,  46  Mich.  140. 

and  see  Bail.  8  Eaton  v.  Harris,  42  Ala.  491. 

6  Jacobson  v.  Miller,  41  Mich.  90; 


§  1  Defaults  475 

matter  of  the  action.®  The  judgment  cannot  be  in  excess 
of  the  amount  of  plaintiff's  claim,  as  stated  in  his  plead- 
ings or  process." 

Judgment  by  default  cannot  be  entered  where  the  serv- 
ice of  original  process  is  void.^^  So  no  default  can  be  en- 
tered on  a  return  showing  merely  the  service  of  ''a"  copy 
of  the  declaration  and  rule  upon  '  *  the  defendants, ' '  since 
each  of  defendants  must  be  served.^''  However,  the  stat- 
ute provides  that  judgments  by  default  shall  not  be  ren- 
dered invalid  by  any  imperfect  or  insufficient  return," 
but  this  cures  nothing  but  formal  defects  and  does  not 
reach  a  failure  to  show  jurisdiction.** 

Form  of  Rule  for  Default  in  Not  Appearing  When  Declaration  Is  Not 

Served  with  the  Writ 
(Title  of  court  and  cause.) 

On  reading  and  filing  due  proof  of  the  service  of  the  writ  of  summons 
(or  as  the  case  may  be)  upon  the  defendant  in  this  cause,  and  the  plain- 
tiff having  filed  his  declaration  herein,  and  more  than  fifteen  days  hav- 
ing elapsed  since  the  service  of  said  writ  upon  the  defendant,  and  the 
defendant  not  having  served  notice  of  his  appearance  or  of  retainer  or 
otherwise  appeared  or  caused  his  appearance  to  be  entered  herein,  on 
motion  of  J.  K.,  attorney  for  plaintiff,  it  is  ordered  that  the  default  of 
the  said  defendant  in  not  appearing  in  this  cause  be,  and  the  same  hereby 
are,  entered. 

Dated,  etc. 

J.  K., 
Attorney  for  Plaintiff. 

Form  of  Rule  for  Default  in  Not  Pleading  When  Declaration  Is  Served 

■with  the  Writ 
(Title  of  court  and  cause.) 

On  reading  and  filing  due  proof  of  the  service  of  the  writ  of  summons 
(or  as  the  case  may  be),  together  with  a  true  copy  of  the  plaintiff's  dec- 
laration herein,  upon  the  defendant  in  this  cause,  and  fifteen  days  having 
elapsed   since    such   service   and   the    defendant   not   having  filed  his   plea 

9  Debs  V.  Dalton,  7  Ind.  App.  84.  12  Campbell     v.     Wayne     Circuit 

10  Rose  V.  Newaygo  Circuit  Judge,      Judge,  111  Mich.  247. 

74  Mich.  332.  13  See  Amendments,  etc. 

11  Boyle  V.  City  of  Detroit,  152  HDonison  v.  Smith,  33  Mich  l.'i.'i 
Mich.    248;     Ellis    v.    Fletcher,    40 

Mich.  321. 


476  Defaults  §  1 

herein   or  served  a  copy   upon  the  plaintiff's  attorney   and   no   motion   to 
dismiss  or  other  special  motion  having  been  made  by  the  defendant  herein, 
on  motion  of  J.  K.,  attorney  for  plaintiff,  it  is  ordered  that  the  default 
of  the  said  defendant  in  not  pleading  be,  and  the  same  hereby  is,  entered. 
Dated,  etc. 

J.  K., 
Attorney  for  Plaintiff. 

Form  of  Rule  for  Default  of  Defendant  in  Not  Pleading,  When  Suit  Has 

Been  Commenced  by  Writ,  and  Defendant  Has  Appeared 
(Title  of  court  and  cause.) 

On  reading  and  filing  due  proof  of  the  service  of  the  writ  of  summons 
(or  as  the  case  may  be)  upon  the  said  defendant  in  this  cause,  and  the 
said  defendant  having  appeared  herein,  and  a  copy  of  the  plaintiff's  dec- 
laration, heretofore  filed  in  this  cause,  having  been  duly  served  upon  the 
said  defendant,  and  more  than  fifteen  days  having  elapsed  since  the  service 
of  the  said  declaration  upon  the  said  defendant,  and  the  said  defendant 
not  having  filed  his  plea  herein  or  served  a  copy  upon  the  plaintiff's 
attorney,  and  no  motion  to  dismiss  or  other  special  motion  having  been 
made  by  the  defendant  herein,  on  motion  of  J.  K.,  attorney  for  the  above- 
named  plaintiff,  it  is  ordered  that  the  default  of  the  said  defendant  in 
not  pleading  be,  and  the  same  hereby  is,  entered. 

Dated,  etc. 

J.  K., 
Attorney  for  Plaintiff. 

Form  of  Rule  for  Appearance  and  Default  in  Not  Pleading  in  Suit  Com- 
menced by  Declaration 
(Title  of  court  and  cause.) 

On  reading  and  filing  due  proof  of  service  of  a  copy  of  the  declaration 
heretofore  filed  in  this  cause,  and  of  the  notice  to  plead  indorsed  thereon, 
and  more  than  fifteen  days  having  elapsed  since  such  service,  and  the  said 
defendant  not  having  filed  his  plea  herein  or  served  a  copy  upon  the 
plaintiff 's  attorney,  and  no  motion  to  dismiss  or  other  special  motion 
having  been  made  herein  by  the  defendant,  on  motion  of  J.  K.,  attorney 
for  plaintiff,  it  is  ordered  that  the  default  of  the  said  defendant  in  not 
pleading  be,  and  the  same  hereby  are,  entered. 
Dated,  etc. 

J.  K., 
Attorney  for  Plaintiff. 

Form  of  Judgment  by  Default  Against  Defendant  in  Assumpsit 
(Title  of  cause.) 

The  default  of  the  said  defendant  in  not  appearing  (or,  in  not  plead- 
ing, as  the  case  may  be)  having  been  duly  filed,  and  the  damages  of  the 

said  plaintiff  having  been  duly  assessed  at  the  sum  of dollars,  over 

and  above  his  costs  and  charges  by  him  about  his  suit  in  this  behalf  ex- 


§  2  Defaults  477 

pended,  therefore,  on  motion  of  J.  K.,  attorney  for  plaintiflP,  it  is  con- 
sidered that  the  said  plaintiff  do  recover  against  the  said  defendant  his 
damages  aforesaid,  together  with  his  costs  and  charges  aforesaid,  to  be 
taxed,  and  that  the  said  plaintiff  have  execution  therefor. 

Form  of  Judgment  on  Default  of  Plaintiff  for  Want  of  Declaration 
(Title  of  cause.) 

In  this  cause,  the  default  of  the  plaintiff  for  the  want  of  a  declaration 
having  duly  filed;  therefore,  it  is  considered  that  the  plaintiff  take  nothing 
by  his  suit,  and  that  the  defendant  do  go  thereof  without  day;  and  it  is 
further  considered  that  the  said  defendant  do  recover  against  the  said 
plaintiff  his  costs  and  charges  by  him  about  his  defense  in  this  behalf 
expended,  to  be  taxed,  and  that  the  defendant  have  execution  therefor. 

§  2.  Default  of  part  of  defendants. 

Where  defendants  are  jointly  liable,  plaintiff  cannot, 
unless  otherwise  provided  by  statute,  take  judgment 
against  a  defendant  in  default  until  the  issues  joined  by 
the  answer  of  the  other  defendants  are  disposed  of.  So, 
at  common  law,  where  an  action  is  brought  on  a  joint  and 
several  demand,  and  part  of  defendants  are  defaulted, 
plaintiff  cannot  discontinue  as  to  the  other  defendants 
and  take  judgment  against  those  in  default.^^  Where 
several  defendants  are  sued  on  a  joint  demand,  and  one 
of  them  not  served  appears  and  serves  his  plea,  judgment 
by  default  could  be  entered  against  the  remaining  defend- 
ants, under  the  old  practice,  before  notice  of  trial  was 
given.^® 

However,  when  plaintiff,  instead  of  bringing  several 
actions,  includes  in  one  action  as  defendants  all  or  any  of 
the  parties  who  may  be  severally  or  jointly  and  severally 
liable,  as  he  may  do  under  the  statute,^'''  a  statute  pro- 
vides that  if  a  default  has  been  obtained  against  a  part 
of  the  defendants,  the  pUiintiff  may  jjroceed  to  trial 
against  the  others  in  the  same  manner  as  if  the  suit  had 
been  commenced  against  the  latter  only,  and  the  action 

15  Wiiislow  V.  Hcrrick,  9  Mu'!!.:;8().  17  Jud.    Act,    ch.    12,    §15;    Comp. 

16  Penfold    V.    Slyfield,    110    Mich.       Laws  1915,  §  12366. 
343. 


478  Defaults  §  2 

will  be  thereby  severed.^'  He  may  also  proceed  against 
the  defendants  who  are  in  default  in  the  same  manner  as 
if  the  suit  had  been  commenced  against  them  alone. ^^ 
But  it  is  not  necessary  that  the  action  should  be  severed 
in  such  event.  Whether  it  shall  be  is  a  matter  wdthin  the 
option  of  the  plaintiff,  and,  instead  of  severing  the  action, 
he  may  proceed  with,  the  trial  as  to  the  defendants  who 
have  joined  issue  and  have  the  damages  against  the  de- 
faulted defendants  assessed  at  the  same  time  by  the  jury, 
if  the  trial  be  by  jury,  sworn  to  try  the  issue,  and  a  joint 
judgment  may  be  entered  against  all  of  the  defendants.^" 

§  3.  Withdrawing  plea  without  substituting  another. 

A  defendant  may,  at  any  time  and  as  a  matter  of  course, 
withdraw  his  plea  when  he  does  not  desire  to  substitute 
another  for  it.  For  this  purpose,  it  is  not  necessary  to 
apply  to  the  court,  but  the  defendant  should  give  the 
plaintiff  notice  of  the  withdrawal.  When  a  plea  is  with- 
drawn, the  case  stands  as  on  default  and  damages  may  be 
assessed  at  any  time  thereafter;  ^^  but  a  defendant  who 
withdraws  his  plea  is  nevertheless  afterwards  entitled  to 
notice  of  any  subsequent  steps  in  the  cause  affecting  his 
rights.** 

Form  of  Judgment  on  Withdrawal  of  Plea 
(Title  of  cause.) 

The  defendant  in  this  cause  having  withdrawn  his  plea  by  him  hereto- 
fore pleaded  in  this  cause,  and  the  damages  of  the  plaintiff  on  occasion 

of  the  premises  having  been  duly  assessed  at  the  sum  of   dollars, 

over  and  above  his  costs  and  charges  by  him  about  his  suit  in  this  behalf 
expended;  therefore,  it  is  considered  that  the  said  plaintiff  do  recover 
against  the  said  defendant  his  damages  aforesaid,  together  with  his  costs 
and  charges  aforesaid,  to  be  taxed,  and  that  the  plaintiff  have  execution 
therefor. 

iBJud.    Act,   ch.  22,   §13;    Comp.  People  v.  Wayne  Circuit  Judge,  22 

Laws   1915,   §12803.  Mich.     493;     Hoeft     v.     Kock,     171 

WJud.   Act,  ch.   22,   §13;    Comp.  Mich.  564. 

Laws    1915,    §12803;     Maynard    v.  21  Cir.  Ct.  Rule  32,  §  2. 

Pennimah,   10   Mich.    153;    Beals   v.  22  Watson  v.  Hinchman,  41  Mich. 

Smith,  91   Mich.  146.  716;   Cir.  Ct.  Rule  13. 

20  Storey  v.  Bird,  8  Mich.  316.   See 


§  4  Defaults  479 

§  4.  Proof  to  authorize  entry  of. 

Before  the  default  of  the  defendant  can  be  entered  for 
not  appearing  in  a  cause,  there  must  be  positive  and  suffi- 
cient evidence  in  court  of  due  service  upon  him,  and  no 
substantial  defect  in  that  respect  can  be  cured  by  subse- 
quent knowledge  of  the  fact.  If  it  is  not  shown  to  the 
court  that  the  party  has  been  duly  notified,  the  court  can- 
not know  that  he  is  in  default  for  not  appearing.^' 
Whether  the  suit  be  commenced  by  original  writ,  by 
declaration,  by  writ  of  attachment  or  by  writ  of  replevin, 
the  statute  allows  the  default  of  the  defendant  to  be  en- 
tered only  upon  proof  of  service  of  the  writ  or  declaration 
by  which  the  suit  was  commenced,^*  showing  the  manner 
in  which  service  has  been  made.^'  In  a  suit  commenced 
by  attachment  where  personal  service  of  the  writ  is  not 
had  upon  the  defendant,  his  default  for  not  appearing  can- 
not be  entered  until  due  proof  has  been  filed  of  publica- 
tion of  notice  of  attachment  or  proof  of  personal  service 
upon  the  defendant  not  less  than  fifteen  days  prior  to  the 
filing  of  such  proof  of  service.^^  Where,  however,  the 
defendant  has  appeared  generally  in  the  cause,  thereby 
submitting  himself  to  the  jurisdiction  of  the  court,  and 
his  default  consists  in  the  omission  to  file  or  serve  his 
pleading,  the  proof  of  service  of  the  process  or  declara- 
tion by  which  the  suit  was  commenced,  the  only  object  of 
which  is  to  establish  the  jurisdiction  of  the  court  over  the 
defendant,  is  rendered  unnecessary. 

In  like  manner,  when  the  plaintiff  has  failed  to  file  his 

23  Johnson  v.  Delbridge,  35  Mich.  Wayne  Circuit  Judge,  111  Mich. 
436;  People's  Mut.  Ben.  Society  v.  247;  Jud.  Act,  ch.  13,  §38;  Comp. 
Frazer,    97    Mich.    627;    Denison   v.      Laws  1915,  §12441. 

Smith,  33  Mich.  155.  26  Jud.   Act,   ch.   26,    §  23 ;    Comp. 

24  Jud.  Act,  ch.  13,  §§  21,  38,  and  Laws  1915,  §  13050;  Wells  v.  Walsh, 
ch.  26,  §19,  ch.  27,  §20;  Comp.  25  Mich.  344;  Thompson  v.  Thomas, 
Laws  1915,  §§12424,  12441,  13046,  11  Mich.  274;  King  v.  Harrington, 
13099.  14  Mich.  532;   Woolking  v.  Haid,  49 

25  People's   Mut.   Ben.    Society   v.  Mich.  299. 
Frazer,   97   Mich.   627;    Campbell   v. 


480  Defaults  §  4 

declaration  and  serve  it  upon  the  defendant  within  the 
time  limited  therefor,  his  default  may  be  filed  and  judg- 
ment taken  against  him  upon  the  basis  thereof,  unless  the 
default  is  set  aside. ^' 

Where  the  default  of  a  party  consists  of  the  failure  to 
file  and  serve  his  pleading,  an  affidavit  showing  that  fact 
is  not  necessary,  for  the  court  will  take  judicial  notice  of 
it.*^^  Where,  however,  the  pleading  has  been  filed  and  the 
default  consists  in  a  failure  to  serve  a  copy,  or,  in  other 
words  and  in  general,  where  the  fact  of  the  default  would 
not  be  disclosed  by  an  inspection  of  the  files  and  entries  in 
the  cause,  but  consists  of  some  extrinsic  fact,  an  affidavit 
showing  the  same  is  a  prerequisite  to  the  entry  of  the 
default.^^  But  even  where  such  affidavit  is  a  prerequisite, 
its  omission  will  be  no  ground  for  reversing  the  judgment 
and  may  be  cured  nunc  pro  tunc  in  the  trial  court.^° 

§  5.  Rule  making  default  absolute. 

Under  the  rule  now^  in  force,  a  further  order  making  a 
default  absolute  is  not  necessary. 

§  6.  Reference  to  assess  damages. 

If  the  default  is  taken  by  the  plaintiff  for  want  of  a 
plea,  the  order  should  direct  that  the  assessment  of  dam- 
ages be  made  by  the  court  or  by  a  jury  at  the  discretion 
of  the  court.^^ 

§  7.  Opening  default. 

The  grounds  for  opening  a  default  are  not  enumerated 
in  the  statutes  or  rules  of  court,  but  ordinarily  a  motion 

27  Cir.    Ct.   Kule   32,    §  1 ;    Bender  29  Low  v.  Mills,  61  Mich.  35. 

V.  Wayne   Circuit  Judge,  181  Mich.  SOBogue  v.  Prentis,  47  Mich.  124; 

50.  Leonard  v.  Woodward,  34  Mich.  514; 

28Edson    V.    La   Londe,    88   Mich.       Steers  v.  Holmes,  79  Mich.  430. 
162;  Leonard  v.  Woodward,  34  Mich.  31  Cir.  Ct.  Rule  32,  §  2. 

514;  Bogue  v.  Prentis,  47  Mich.  124; 
Steers  v.  Holmes,  79  Mich.  430;  El- 
liott V,  Farwell,  44  Mich.  186. 


§  7  Defaults  481 

to  open  a  default  will  be  granted  where  the  party  moves 
promptly  and  has  not  been  guilty  of  inexcusable  negli- 
gence, provided  he  complies  with  the  rules  of  court  in  re- 
gard to  his  motion  papers.  In  this  connection  defaults 
may  be  classified  as  those  regularly  entered  and  those 
irregularly  entered.  If  the  default  of  the  defendant  has 
been  irregularly  entered,  the  court,  on  motion,  will  set  it 
aside  as  when  it  is  entered  before  the  time  allowed  for 
pleading  has  expired ;  ^^  or  where  the  declaration  was 
served  before  it  was  filed  or  rule  to  plead  entered,^^  or,  it 
has  been  held,  where  the  affidavit  of  service  of  the 
declaration  by  which  the  suit  was  commenced  does  not 
show  how  the  service  was  made.'*  Where  suit  is  com- 
menced by  attachment  against  a  non-resident,  the  court 
may,  in  its  discretion,  set  aside  the  judgment  and  permit 
defendant  to  plead  where  he  has  had  no  notice  of  the  ac- 
tion in  time  to  make  a  defense  and  has  been  guilty  of  no 
laches.'^  In  exceptional  cases,  it  seems,  the  court  may 
vacate  a  default  judgment  on  his  own  motion.'^  A  default 
in  filing  the  declaration  may  also  be  vacated  in  a  proper 
case.^''^ 

Form  of  Affidavit  to  Set  Aside  a  Regular  Default 

(Title  of  court  and  cause.) 
County  of ,  ss. 

K.  L.,  attorney  for  said  defendant,  being  duly  sworn,  deposes  and  says 
that  a  copy  of  the  declaration  filed  in  this  cause  was  served  upon  him  by 

32  Vohlers  v,  Wayne  Circuit  Judge,  Padgham,  97   Mich.   623. 

171  Mich.  8.  33  Marshall  v.  Calkins,  114  Mich. 

Where     a     non-resident     plaintiff  697;  South  Bend  Plow  Co.  v.  Mana- 

gives  security  for  costs  upon  an  or-  han,  62  Mich.  143. 

der  therefor  made  upon  the  applica-  34  People 's   Mut.   Ben.    Society  v. 

tion  of  the   defendant,  the   defend-  Wayne  Circuit  Judge,  97  Mich.  627. 

ant's  default  for  not  pleading,  en-  86  Hurlburt  v.  Keed,  5  Mich.  30. 

tered  upon  the   same   day   that  the  36  Hoeft  v.  Kock,  171  Mich.  564, 

security  is  filed,  is  prematurely  en-  571. 

tered,  and  mandamus  will  lie  to  va-  87  Bender  v.  Wayne  Circuit  Judge, 

cate  a  judgment  based  thereon,  and  181  Mich.  50. 
to  set  aside  the  default.    Sankans  v. 
1  Abbott— 31 


482  Defaults  §  7 

leaving  the  same  in  his  office  during  his  absence  therefrom,  but  that  this 

deponent  did  not  know  of  the  same  until  the day  of ,  A.  D. 

,  whereupon  this  deponent  forthwith  filed  a  plea  to  said  declara- 
tion, a  copy  of  which  said  plea  is  hereto  annexed,  and  tendered  the  said 
annexed  copy  to  J.  K.,  the  attorney  for  the  said  plaintiff,  but  that  the 
said  J.  K.  refused  to  receive  the  said  copy  and  informed  this  deponent 
that  the  default  of  the  said  defendant  for  not  pleading  in  this  cause  had 
been  before  that  time  filed. 

Deponent  further  says  that  he  first  obtained  knowledge  of  the  filing  of 
such  default  by  being  informed  thereof  by  the  said  J.  K.,  as  aforesaid, 

and  that  immediately  thereafter,  and  on  the   day  of   ,  A.  D. 

,  he  filed  an  affidavit  of  merits  herein  and  again  tendered  to  the 

said  plaintiff's  attorney  the  annexed  copy  of  said  plea,  together  with  the 
annexed  copy  of  said  affidavit  of  merits,  and  then  and  there  offered  to 
pay  the  aforesaid  J.  K.  the  costs  of  said  default  (or  any  other  and  further 
offer  made  to  the  plaintiff's  attorney),  if  the  said  J.  K.  would  consent 
to  waive  the  said  defendant's  default  so  filed  as  aforesaid,  but  that  the 
said  J.  K.  refused  to  waive  the  same,  and  to  accept  the  said  plea. 

Subscribed,  etc. 


K.  L. 


Form  of  Affidavit  to  Set  Aside  an  Irregular  Default 


(Title  of  court  and  cause.) 
County  of ,  ss. 

K.  L.,  attorney  for  the  above-named  defendant,  being  duly  sworn,  de- 
poses and  says  that  a  copy  of  a  declaration  in  this  cause  was  duly  served 

on  the day  of ,  A.  D ,  and  that,  on  the day  of 

,   A.   D ,   this   deponent   filed,   in   the   office   of   the   clerk   of 

said  court,  the  defendant's  plea  to  said  declaration,  a  copy  of  which  is 
hereto  annexed,  and,  upon  the  same  day,  he  served  upon  J.  K.,  attorney 
for  the  said  plaintiff,  a  copy  of  said  plea,  by  (here  describe  the  mode  of 
service) . 

And  deponent  further  says  that,  although  the  said  defendant's  plea  was 
duly  filed,  and  a  copy  thereof  served  upon  the  attorney  for  said  plaintiff, 

as  aforesaid,  yet  afterwards,  on  the   day  of  ,  A.  D , 

the  default  of  the  said  defendant  for  not  pleading  in  this  cause,  was  filed 
herein,  and  that  the  said  plaintiff  is  now  proceeding  to  judgment  thereon. 

Subscribed,  etc. 

K.  L. 

§  8.  Time  for  motion. 

The  motion  must  be  made  ' '  as  soon  as  practicable  after 
lie  shall  know  or  have  reason  to  believe  that  the  default 
has  been  filed."  ^^    Furthermore,  by  rule  of  court,  "in  all 

38  Cir.  Ct.  Rule  32,  §  4. 


§  8  Defaults  483 

cases  where  personal  service  shall  have  been  made  upon  a 
defendant,  and  proceedings  taken  after  default  on  the 
strength  thereof,  his  default  shall  not  be  set  aside  unless 
the  application  shall  be  made  within  six  months  after 
such  default  is  regularly  filed. ' '  ^^  Note  that  there  are 
two  conditions,  viz.:  (1)  proceedings  must  have  been 
taken  on  the  strength  thereof,  and  (2)  the  default  must 
have  been  regularly  filed.  The  entry  of  a  judgment  is  ' '  a 
proceeding  taken  after  default  on  the  strength  thereof," 
within  the  meaning  of  this  rule  of  court;*"  but  the  con- 
trary is  held  as  to  filing  a  note  of  issue  and  demanding  a 
juiy  trial.*^  Secondly,  the  six  months '  limitation  does  not 
apply  to  a  default  irregularly  entered.*^  If  the  default 
was  regularly  entered,  the  circuit  court  has  no  jurisdic- 
tion to  open  a  default  entered  after  personal  service  after 
the  expiration  of  such  six  months."  It  precludes  the  trial 
judge  from  setting  aside  the  default  of  a  garnishee  de- 
fendant, after  such  six  months,  notwithstanding  the  de- 
faulted party  is  a  foreigner,  and  did  not  understand  the 
process  served.**  It  follows  that  this  rule  cannot  be  in- 
directly violated  by  procuring  the  vacation  of  a  default 
judgment  on  a  motion  for  a  new  trial  so  as  to  then  pro- 
cure the  opening  of  the  default  after  the  six  months  on  the 
ground  that  there  were  no  ''proceedings  taken  after  de- 
fault on  the  strength  thereof. ' '  ** 

39Cir.   Ct.   Eule  32,   §4;    Cook  v.  Turner  v.  Ottawa  Circuit  Judge,  123 

Wayne  Circuit  Judge,  197  Mich.  19.  Mich.  617. 

40Burgard  v.  Burgard,  175  Mich.  43  Biensteadt     v.     Clinton    Circuit 

565;  Carpenter  v.  Judge  of  Superior  Judge,  142  Mich.  633. 

Court   of  Grand  Eapids,   126  Mich.  Order   after   six   months   is   void. 

8;    Cook    V.    Wayne    Circuit    Judge,  Cook   v.  Wayne  Circuit  Judge,  197 

197  Mich.  19.  Mich.  19. 

41  Cleveland,  C,  C.  &  St.  L.  E.  Co.  44  Petley  v.  Wayne  Circuit  Judge, 

V.  Berrien  Circuit  Judge,  187  Mich.  124  Mir-li.  14.     See  also  Caille  Bros. 

444.  V.  Saginaw  Circuit  Judge,  155  Mich. 

48  W.  H.  Warner  Coal  Co.  v.'  Nel-  480. 

son,    204     Mich.     317;     McCain     v.  45  Travelers'  Ins.  Co.  v.  Kent  Cir- 

Wayne  Circuit  Judge,  187  Mich.  73;  cuit  Judge,  144  Mich.  687. 


484  Defaults  §  9 

§  9.  Affidavit  of  merits. 

The  party  desiring  to  have  a  default  set  aside  must  file 
and  serve  an  affidavit  of  merits  with  his  application  to 
have  the  default  set  aside,*^  except  where  the  default  has 
been  irregularly  entered,  as  for  instance  where  the  entry 
was  premature.*'^ 

§  10. Conditions  on  granting  application. 

In  any  case  where  personal  sei-vice  has  been  made  on  a 
defendant,  an  order  setting  aside  his  default  shall  be  con- 
ditioned on  his  payment  to  the  plaintiff  of  the  taxable 
costs  incurred  in  reliance  on  said  default  and  the  court 
may  impose  such  other  conditions  as  deemed  proper.*' 
Where  the  affidavit  of  merits,  shows  that  there  was  no 
substantial  merit  in  the  defense  up  to  a  specified  amount, 
it  is  proper  to  deny  the  motion  on  condition  that  plain- 
tiff reduces  the  judgment  to  that  amount."  However,  it 
is  not  within  the  discretion  of  the  court  to  limit  the  de- 
fense of  a  city  in  an  action  for  personal  injuries  by  strik- 
ing from  the  plea  notice  that  defendant  would  give  evi- 
dence that  no  written  notice  of  the  injury  was  given  the 
proper  city  department  as  required  by  statute.^"  An 
order  to  show  cause  will  not  be  granted  to  inquire  into 
the  imposition  by  a  circuit  judge  of  costs  as  terms  for 
opening  a  default.*^ 

§  11.  Discretion  of  court  and  review  thereof. 

The  imposition  of  costs,  and,  in  general,  the  determina- 
tion of  applications  to  set  aside  defaults,  where  the  de- 
fault was  regularly  entered,  lie  within  the  discretionary 
power  of  the  court,  and  will  not  be  reviewed  unless  there 

46  Cir.  Ct.  Rule  32,  §  4.  «  Carton  v.  Day,  157  Mich.  43. 

47Vohlers  v.  E.  H.  Stafford  Mfg.  60  City  of  Detroit  v.  Wayne  Cir- 

Co.,  171  Mich.  8,  17.  euit  Judge,  112  Mich.  317. 

48  Cir.  Ct.  Rule  32,  §  4.     See  also  61  People  v.  Wayne  Circuit  Judge, 

Carton  v.  Day,  157  Mich.  43.  39  Mich.  375. 


Defects 


485 


has  been  a  clear  abuse  of  discretion.*^  The  matter  be- 
longs exclusively  to  the  practice  of  the  court,  and  fonns 
no  part  of  a  common  law  judgment  record,  so  that  it  can- 
not constitute  a  ground  for  an  assignment  of  error.*^ 
Mandamus  is  the  proper  remedy  to  correct  the  action 
of  a  court  in  case  of  an  abuse  of  its  discretionaiy  author- 
ity in  the  setting  aside  of  defaults,**  but  it  will  not  lie  to 
compel  a  circuit  judge  to  set  aside  a  defendant's  default 
when  he  has  failed  to  file  and  serve  an  affidavit  of  merits 
as  required  by  the  rule.** 

Form  of  Rule  to  Set  Aside  a  Regular  Default 

(Title  of  court  and  cause.) 

On  reading  and  filing  affidavits  in  this  cause,  and  on  motion  of  K.  L., 
attorney  for  the  above-named  defendant,  and  after  hearing  J.  K.,  attorney 
for  the  above-named  plaintiff,  in  opposition  thereto,  it  is  ordered  that  the 
default  heretofore  entered  in  this  cause  be,  and  the  same  hereby  is,  set 

aside,  on  the  payment  of   dollars,  costs ;  and  it  is  further  ordered 

that  the  said  defendant  have   days  to  plead  to  the  declaration  of 

the  said  plaintiff  in  this  suit. 

Form  of  Rule  to  Set  Aside  an  Irregular  Default 

(Title  of  court  and  cause.) 

On  reading  and  filing  affidavits  in  this  cause,  and  on  motion  of  K.  L., 
attorney  for  the  above-named  defendant,  and  after  hearing  J.  K.,  the 
attorney  for  the  said  plaintiff,  in  opposition  thereto,  it  is  ordered  that 
the  default  heretofore  entered  in  this  cause  and  all  subsequent  proceedings 

therein  be,  and  the  same  hereby  are,  set  aside  for  irregularity,  with 

dollars,  costs  (and  that  the  said  defendant  have   days  to  plead). 

DEFECTS 

See  Amendments  and  Defects  Cured  by  Verdict. 


52  People  V.  Wayne  Circuit  Judge 
39  Mich.  375;  Mills  v.  McLeod,  94 
Mich.  627;  People  v.  Saginaw  Cir 
cuit  Judge,  39  Mich.  123;  Carton  v 
Day,  157  Mich.  43;  Hews  v.  Hews 
145  Mich.  247;  City  of  Detroit  v 
Wayne  Circuit  Judge,  112  Mich.  317 

53  Final  v.  Backus,  18  Mich.  218 
Otherwise,  where  conditions  are  im 


posed.  Carton  v.  Day,  157  Mich.  43. 

54  Walsh  V.  Brevoort,  76  Mich. 
470;  Eankans  v.  Padgham,  97  Mich. 
623.  See  also  Bender  v.  Wayne  Cir- 
cuit Judge,  181  Mich.  50.  Compare 
Niehol  v.  Nevers,  196  Mich.  203. 

65  Walsh  V.  Brevoort,  76  Mich. 
470. 


486  Defendants 

DEFENDANTS 

See  Parties. 

DEFENSES 

See  Actions;  Defaults;  etc. 

DEFINITIONS 

See  Actions;  Affidavits;  Appearance;  Attorneys;  Bill  of  Particu- 
lars; Contempt;  Continuances;  Courts;  Depositions;  Executions; 
Judgments;  Nuisances;  Pleading;  Process;  Eeferences;  Set-Opf, 
etc.;  Error,  Writ  of;  etc. 

DEMAND 

See  Bill  of  Particulars;  Jury;  Eeplevin;  Mandamus;  Garnishment; 
Set-Opf,  etc. 

DEMURRERS 

Demurrers  are  abolished  by  the  Judicature  Act  (see 
Pleading). 

DEPARTURE 

See  Quo  Warranto. 

DEPOSITIONS 

§    1.  Statutes  in  general. 

§    2.  When  deposition  may  be  taken  in  pending  proceeding. 

§    3.  Before  whom  taken. 

§    4.  Notice   of  taking. 

§    5.  Compelling  attendance  of  witnesses. 

§    6.  Taking  depositions  by   commission. 

§    7.  Notice   of  taking. 

§    8.  Interrogatories. 

§    9.  Authority  of  courts  to  compel  witnesses  to  attend  and  testify. 

§  10.  How  examination  conducted. 

§  11.  Disposition  of  depositions  when  taken. 

§  12.  When  and  how  objections  taken  after  return  of  deposition. 

§  13.  Taking  depositions  to  perpetuate  testimony. 

§  14.  Taking  testimony  by  stipulation. 

§  15.  Force  and  effect. 

§  16.  Fees  for  taking. 

Cross-Eeferences:    References;  Bill  op  Exceptions;  Mandamus. 


§  2  Depositions  487 

§  1.  Statutes  in  general. 

The  law  relating  to  depositions  is  fixed  almost  entirely 
by  statutes  which  go  extensively  into  the  details  as  to  the 
practice.  In  1895  an  entirely  new  statute  was  enacted  and 
hence  decisions  before  that  time  are  to  be  read  with  cau- 
tion. The  Judicature  Act  changed  the  existing  statutes 
only  in  a  few  minor  respects. 

§  2.  When  deposition  may  be  taken  in  pending  proceed- 
ing. 

The  testimony  of  any  witness  may  be  taken  by  deposi- 
tion de  bene  esse  in  any  civil  cause  or  matter  pending 
in  any  court  of  record  or  before  any  probate  court  or 
commissioners  on  claims  appointed  by  any  probate  court, 
or  arbitrators,  referees  or  circuit  court  commissioners,  or 
justice  of  the  peace  in  the  state  of  Michigan,  or  in  any 
other  civil  proceeding,  (1)  when  the  witness  is,  or  is 
about  to  go,  or  resides,  out  of  the  State  of  Michigan,  or 

(2)  is  about  to  go  or  reside  more  than  fifty  miles  from  the 
place  of  trial  or  beyond  the  jurisdiction  of  the  court,  or 

(3)  when  the  witness  is  sick,  aged  or  infirm,  or  where 
there  is  reasonable  cause  for  apprehension  that  his  testi- 
mony cannot  be  had  at  the  trial  of  the  cause,  or  (4)  where 
it  is  needed  for  use  on  the  hearing  of  motions,  petitions, 
proceedings  for  injunctions  or  upon  any  other  interlocu- 
tory or  other  proceeding  prior  to  the  final  hearing  of  any 
cause;  and  (5)  in  all  cases  where  affidavits  are  permitted 
to  be  used  in  proceedings  before  the  court,  and  (6)  when 
it  is  desired  to  take  conditionally  and  perpetuate  testi- 
mony in  suits  to  be  begun,  and  (7)  in  any  other  case  when 
it  appears  to  the  court  or  to  the  judge  thereof  that  the 
purposes  of  justice  will  be  aided  thereby.^  The  deposi- 
tion of  a  party  to  an  action  may  be  taken  at  the  instance 
of  the  opposing  party. ^ 

iJud.  Act,  ch.  17,  §6;  Comp.  116  Midi.  10;  St.  John  v.  Wayne 
Laws  1915,  §  12494.  Circuit  Judge,  161  Mich.  299. 

2  Young    V.    Kent    Circuit    Judge, 


488  Depositions  §  3 

§  3.  Before  whom  taken. 

A  deposition  may  be  taken  before  any  judge  of  any 
court  of  the  United  States  or  of  any  state  of  the  United 
States  or  of  any  foreign  country,  or  before  any  commis- 
sioner of  a  circuit  court  in  Michigan  or  of  the  United 
States  or  of  any  state,  or  before  any  consul  or  consular 
officer,  justice  of  the  peace,  officer  or  notary  public  au- 
thorized by  the  laws  of  this  state  or  of  any  other  state  or 
of  the  United  States,  or  by  the  laws  of  any  foreign  coun- 
try, to  administer  oaths,  not  being  of  counsel  or  attorney 
for  either  of  the  parties  or  interested  in  the  event  of  the 
cause.  The  seal  of  such  court  or  official  or  a  certificate  of 
such  authority  given  under  the  seal  of  any  court  of  record 
is  prima  facie  evidence  of  authority  to  act.' 

§  4.  Notice  of  taking. 

Reasonable  notice  must  first  be  given  in  writing  by  the 
party  or  his  attorney  proposing  to  take  a  deposition  to 
the  opposite  party  or  his  attorney  of  record.  The  notice 
is  required  to  state  the  name  of  the  witness,  the  time  and 
place  of  taking  his  deposition  and  the  name  of  the  official 
before  whom  it  will  be  taken.  In  all  cases  in  rem,  attach- 
ment or  replevin,  the  person  having  the  agency  or  posses- 
sion of  the  property  at  the  time  of  the  seizure  will  be 
deemed  the  adverse  party  until  a  claim  has  been  put  in  or 
an  appearance  entered  in  the  cause.  And  whenever,  by 
reason  of  the  absence  from  the  jurisdiction  of  an  adverse 
party  or  want  of  an  opposite  attorney  of  record  or  other 
reason,  the  giving  of  such  notice  is  impracticable,  it  will 
be  lawful  to  take  such  deposition  as  there  is  urgent  neces- 
sity for  taking,  upon  such  notice  as  any  judge  authorized 
to  hold  court  within  the  jurisdiction  where  the  suit  is 
pending  thinks  reasonable  and  directs.* 

3Jud.    Act,    ch.    17,    §6;     Coinp.  4  Jud.    Act,    ch.    17,    §6;     Comp. 

Laws  1915,  §  12494.  Laws  1915,  §  12494. 


§  4  Depositions  489 

It  is  not  necessary  to  file  any  affidavit  or  make  any 
other  showing  preliminary  to  serving  the  notice,  but  the 
notice  should  .set  out  the  facts  upon  which  the  right  to 
take  the  deposition  depends.^ 

The  question  of  whether  a  notice  is  reasonable  is  for 
the  trial  court  to  decide,  and,  in  arriving  at  a  conclusion 
upon  it,  the  court  must  be  governed  somewhat  by  the  cir- 
cumstances surrounding  the  particular  case.®  As  a  gen- 
eral rule,  a  notice  is  sufficiently  long  if  it  gives  counsel 
time  to  prepare  for  the  taking  and,  by  the  ordinary  means 
of  travel,  to  reach  the  place  where  the  testimony  is  to  be 
taken.' 

Form  of  Notice  to  Take  Deposition  of  Witness  in  Suit  Pending 
(Title  of  court  and  cause.) 
Sir:— 

You   will   please   to   take  notice   that   the   deposition   of   W.    S.,   of   the 

of ,  in  the  state  of   ,  as  a  witness  in  this  cause,  will 

be  taken  before    (name  and  official  designation),  at ,  in  the 

of   ,  in  the  state  of    ,  on  the   day  of   , 

A.  D ,  at   o'clock  in  the   noon,  for  the  reason  that 

said  W.  S.  resides   out  of  the  State   of  Michigan   (or  for  any  other  stat- 
utory reason  as  the  case  may  be). 
Dated,  etc. 

Yours,  etc.,  J.  K., 

Attorney  for  Plaintiff. 
To  K.  L.,  Attorney  for  Defendant. 

Form  of  Notice  to  Take  Deposition  of  Witness  in  Suit  to  Be  Begun 
Sir:— 

You  will  please  to  take  notice  that  it  is  desired  to  take   conditionally 

and  perpetuate  the  testimony  of  W.  S.,  of  the   of    ,  in  the 

State  of ,  as  a  witness  in  a  suit  to  be  begun  by  A.  B.,  as  plaintiff, 

against   C.  D.,  as  defendant,  and  that  the  deposition  of  the  said  W.   S. 

Rule  applied  to  deposition  taken  6  Drosdowski  v.  Supreme  Council, 
on  review  under  Workmen's  Com-  Order  of  Chosen  Friends,  114  Mich, 
pensation  Act.  Hamilton  v.  Macey  178,  where  a  deposition  was  ex- 
Co.,  19;j  Mich.  747;  Shaffer  v.  eluded  because  the  notice  was  unrea- 
D  'Arcy  Spring  Co.,  199  Mich.  537.  sonablc  under  the  circumstances. 

5  Patterson  v.  Wabash,  etc.,  R.  Co.,  7  McCall     Co.     v.     Jacobson,     139 

54  Mich.   91;    Colton  v.  Rupert,   60  Mich.    455,    where   three    days    held 

Mich.  318;  Wanner  v.  Wayne  Circuit  sufficient  to  prepare. 
Judge,  169  Mich,  231. 


490  Depositions  |  4 

will  accordingly  be  taken  before    (name  and  official  designation), 

at ,  in  the of ,  in  the  State  of  ,  on  the 

day  of ,  A.  D ,  at   o  'clock  in  the   noon. 

Yours,  etc.,  * 

To  C.  D.  A.   B. 

§  5.  Compelling  attendance  of  witnesses. 

Any  person  may  be  compelled  to  appear  and  depose  by 
the  order  or  process  of  any  court  and  to  produce  books 
and  papers  in  the  same  manner  as  witnesses  may  be  com- 
pelled to  appear  and  testify  in  court.* 

§  6.  Taking-  depositions  by  commission. 

In  any  case  where  the  deposition  of  a  witness  can  be 
taken  upon  notice,  his  deposition  may  instead  be  taken 
under  a  commission.  Any  circuit  court  commissioner  in 
the  State  of  Michigan,  or  the  court  in  which  the  proceed- 
ing is  begun  or  pending,  or  the  judge  or  clerk  thereof,  or 
in  cases  pending  before  a  justice  of  the  peace,  such  jus- 
tice, upon  affidavit  showing  reason  therefor,  may  issue  a 
commission  for  the  taking  of  the  testimony  of  the  witness 
before  any  person  therein  appointed  as  commissioner.' 
Upon  every  such  commission,  the  statute  requires  that 
section  nine  of  chapter  seventeen  of  the  Judicature  Act  be 
printed,  for  the  purpose  of  instruction  to  the  commis- 
sioner in  the  execution  of  his  duties  under  the  com- 
mission.^° 

8  Jud.    Act,    ch.    17,    §  6;    Comp.  titled  action ;  that of 

Laws  1915,  §  12494.  is   a  material   witness   on   behalf  of 

9  Jud.    Act,    ch.    17,    §7;     Comp.  deponent    in   said   cause,    and    with- 
Laws  1915,  §  12495.  out   whose   testimony   deponent   can- 
Variance  in  middle  initial  of  com-  not  safely  proceed  to  trial;  that  the 

missioner    not    fatal.      Cronkhite    v.  reason  for  asking  the  issuance  of  a 

Mills,  76  Mich.  669.  commission  to  take  the  deposition  of 

said   witness   is   that    (state   one   of 

Form    of    Affidavit  the  reasons  set  forth  in  Comp.  Laws 

(Title  of  court  and  cause.)  3915,    §  12494). 

(Venue.)  Subscribed,  etc. 

,  being  duly  sworn,  deposes  (Signature.) 

and    says    that    he    is    the    plaintiff  10  Jud.    Act,    ch.    17,    §7;    Comp. 

(or  "defendant")  in  the  above  en-  ,aws  1915,  §12495. 


§  7  Depositions  491 

§  7.  Notice  of  taking. 

Notice  is  required  to  be  given  in  all  cases  to  the  oppo- 
site party  or  his  attorney  of  the  time  and  place  of  taking 
testimony  under  a  commission,  except  that,  where  default 
has  been  entered  in  the  cause,  no  notice  is  necessary,^^ 
unless  to  a  defendant  who  has  regularly  appeared,  but 
has  not  followed  his  appearance  by  plea.^^ 

Form  of  Commission  to  Take  Testimony 
In  the  Name  of  the  People  of  the  State  of  Michigan. 

To ,  of ,  in  the  State  of ,  Greeting : 

Whereas  it  has  been  made  to  appear  to  the  circuit  court  for  the  county 

of ,  in  the  State  of  Michigan,  that ,  of   ,  is  a  material 

witness  in  a  certain  cause  now  pending  in  said  court  between  A.  B.,  as 
plaintiff,  and  C.  D.,  as  defendant,  we,  in  confidence  of  your  prudence 
and  fidelity,  have  appointed  you  to  take  the  testimony  of  the  said  wit- 
ness at  the  time  and  place  fixed  in  the  notice  hereto  annexed,  and,  when 
taken,  signed  by  said  witness  and  certified  by  you,  to  inclose,  indorse 
and  transmit  the  deposition,  duly  annexed  to  this  commission,  forthwith 
to  ^aid  court  in  accordance  with  the  requirements  of  the  statute  hereupon 
printed. 

Witness,  etc. 

(On  the  commission  must  be  printed  section  9  of  Chapter  17  of  the 
Judicature  Act.) 

J.  K, 
Form  of  Notice  of  Taking  Testimony  by  Commission 
(Title  of  court  and  cause.) 
Sir: 

Please  take  notice  that  the  testimony  of ,  of ,  as  a  witness 

for  the  plaintiff  (or,  defendant)  in  said  cause  will  be  taken  by  commis- 
sion before (name  and  official  designation),  at ,  in  the 

of ,  in  the  State  of ,  on  the day  of ,  A.  D 

at o'clock  in  the  noon.    (If  interrogatories  to  be  put  to  the 

witness  by  the  commissioner  are  attached  to  the  commission,  add  the  fol- 
lowing:   And  that  attached  hereto  is  a  copy  of  interrogatories  to  be  put 
to  said  witness  by  said  commissioner.) 
Dated,  etc. 

Yours,  etc., 

J.  K., 
Attorney  for  Plaintiff  (or,  Defendant). 
To  K.  L., 

Attorney  for  Defendant   (or,  Plaintiff). 

ll.Jud.    Act,    ch.    17,    §7;    Comp.  12  Cir.  Ct.  Rule  13. 

Laws  1915,  §  12495. 


492  Depositions  §  8 

§  8.  Interrog-atories. 

AVritten  interrogatories  to  be  put  to  the  witness  by  the 
commissioner  may  be  attached  to  the  commission,  and, 
where  this  is  done,  a  copy  of  the  interrogatories  is  re- 
quired to  be  attached  also  to  the  notice  which  must  be 
given.  Cross  and  re-direct  interrogatories,  which  it  is 
desired  the  commissioner  shall  put  to  the  witness,  are  re- 
quired thereupon  promptly  to  be  furnished  to  the  re- 
spective parties  and  to  the  commissioner.^^  In  regard  to 
the  form  and  substance  of  the  interrogatories,  it  should 
be  observed  that  they  should  be  framed  carefully  upon 
the  principles  governing  the  examination  of  witnesses  in 
open  court,  for,  although  the  commissioner  has  no  author- 
ity to  exclude  the  answers  to  improper  questions,  the 
court  has  and  will  exercise  it,  if  objection  be  properly 
made,  when  the  deposition  is  sought  to  be  used  on  the 
trial.i* 

§  9.  Authority  of  courts  to  compel  witnesses  to  attend  and 
testify. 
Courts  of  record  of  this  state  have  the  power  to  compel 
the  attendance  of  witnesses  and  the  giving  of  their  testi- 
mony, and  the  production  of  books,  papers  and  other  evi- 
dence, before  commissioners  or  persons  authorized  to 
take  testimony,  and  also  under  commissions  or  letters 
rogatory  issued  out  of  any  court  of  any  other  state  or  of 
the  United  States  or  of  anj'-  foreign  government  or  coun- 
try." 

13  Jud.  Act,  ch.  17,  §7;  Comp.  thority  of  a  foreign  court  may  pre- 
Laws  1915,  §  12495.  sent   in   his  own   name,  it   seems,   a 

14  Bliss  V.  Paine,  11  Mich.  92.  petition  to  the  circuit  court  to  com- 

15  Jud.  Act,  ch.  17,  §8;  Comp.  pel  the  witness  to  answer  questions. 
Laws  1915,   §  12496.  Van    Dyke    v.    Doughty,    174    Mich. 

Procedure  where  witness  refuses  to  351. 
testify,  see  Wanner  v.  Mandell,  169  If    a    witness    refuses    to    answer 

Mich.  231;  St.  John  v.  Wayne  Circuit  "any  legal  and  pertinent  question," 

Judge,  161  Mich.  299.  the  statute   (Jud.  Act,  ch.  17,  §76; 

A  notary  acting  under  lawful  au-  Comp.  Laws  1915,  §  12564)  provides 


§  10  Depositions  493 

§  10.  How  examination  conducted. 

Each  witness  must  be  sworn  or  affirmed  by  the  officer  or 
person  empowered  to  take  his  testimony  to  tell  the  truth, 
the  whole  truth  and  nothing  but  the  truth,  concerning 
the  matter  at  issue  in  the  cause.  Every  witness  may  be 
examined,  cross-examined  and  re-examined  orally,  and 
also  so  examined  in  addition  to  written  direct  or  cross 
interrogatories.  Examinations  may.  be  adjourned  from 
time  to  time.  The  testimony  may  be  written  or  taken 
stenographically  and  transcribed  under  the  direction  of 
the  officer  so  taking  it,  and  must  be  signed  by  the  witness 
and  certified  as  correct  by  the  official  before  whom  it  is 
taken,  but  signatures  of  witnesses  may  be  waived  in 
writing  by  agreement  of  the  parties. ^^ 

Objections  to  testimony  must  be  made  before  the  officer 
taking  the  testimony,  if  a  party  wishes  to  make  objec- 
tion on  the  trial  when  the  deposition  is  read.  Such  officer 
has  no  power  to  pass  upon  such  objections  or  to  rule  out 
for  incompetency  any  evidence  which  a  party  insists  upon 
taking,  but  the  objections  are  made  before  him  for  the 
purpose  of  saving  the  question  when  the  deposition  is 
offered  in  court.^' 

that  he  shall  be  committed  to  jail;  fied    in    the   notice.     But   when  the 

and  where  a  notary  seeks  to  compel  party     on     whom    the    notice     was 

a  witness  to  answer  a  question  in  a  served,  failed  to  attend,  and  the  com- 

deposition,  the  rule  is  that  he  should  missioner,  on  account  of  the  absence 

be  required  to  answer  "if  it  can  be  of  a  witness,  adjourned  the  hearing 

seen  that  the  testimony  offered  may  to  another  town  in  the  same  county, 

be  admissible  as  affecting  any  issue  and  then  took  the  testimony,  it  was 

involved   in  the  suit   in  which   it  is  held   that   if   the  party   was   injured 

offered."      Van    Dyke    v.    Doughty,  by     the    adjournment,    his    remedy 

174  Mich.  351.  was  to  move  the  court,  on  a  proper 

16  Jud.    Act,    ch.    17,    §9;    Comp.  showing,  to  suppress  the  deposition, 

Laws  1915,   §  12497.  and  not   having   done   so,   he   could 

Interpreter  may  be  used.    Campan  not  object  to  its  being  read  on  the 

v.  Dewey,  9  Mich.  381.  trial.     Wixom  v.  Stephens,  17  Mich. 

The     examination     of     witnesses  518. 
should  not  be  adjourned  by  the  of-  17  Parsons  v.  Dickinson,  23  Mich, 

fleer  to  another  town  than  that  speci-  56. 


494  Depositions  §  10 

Form  of  Deposition 
(Title  of  court  and  cause  if  suit  pending.) 

Deposition  of  W,  S.,  the  witness  (or,  one  of  the  witnesses)  mentioned 
in  the  notice,   a  copy   of  which  is  hereto  attached,   taken  in   said   cause 

(or,  in  the  matter  mentioned  in  said  notice)   before  me   ,  a  notary 

public  in  and  for  the  county  of ,  in  the  State  of   ,   (or,  as 

his  official  character  may  be)   pursuant  to  said  notice,  on  the   ......   day 

of ,  A.  D ,  commencing  at o'clock  in  the noon, 

at  

Mr.  J.  K.  appeared  as  attorney  for  A.  B.,  mentioned  in  said  notice, 
and  K.  L.  appeared  as  attorney  for  C.  D.,  mentioned  in  said  notice. 

The  said  witness  having  been  by  me  first  duly  sworn  to  tell  the  truth, 
the  whole  truth  and  nothing  but  the  truth  concerning  the  matter  at  issue 
in  said  cause  (or,  in  said  matter)  testified  as  follows:  (Insert  the  testi- 
mony.) 

W.  S. 

State  of  ,     |gg 

County  of   ( 

I  hereby  certify  that  the  foregoing  deposition  of  W.  S.  was  taken  before 
me  at  the  time  and  place  stated  in  the  notice  therefor  hereto  attached 
and  at  the  adjourmnents  thereof  as  the  same  appear  therein;  that  said 
witness  was  duly  sworn  by  me  to  tell  the  truth,  the  whole  truth  and  nothing 
but  the  truth  concerning  the  matters  in  issue  in  said  cause  (or,  in  said 
matter) ;  that  he  was  then  examined  as  in  the  body  of  said  deposition 
appears;  and  that  said  testimony  was  written  (or,  was  taken  stenographic- 
ally  and  transcribed)  by  me  (or,  under  my  direction)  and  signed  by  said 
witness;  and  I  hereby  certify  the  same  as  correct. 


(Official  character.) 

§  11.  Disposition  of  depositions  when  taken. 

A  deposition,  when  taken,  is  required  to  be  forthwith 
inclosed  by  the  official  before  whom  it  was  taken  and  to 
be  indorsed  with  the  title  of  the  court  and  cause  and  that 
the  deposition  was  taken  and  sealed  up  by  him  and  how 
it  is  to  be  sent,  which  indorsement  the  official  must  sign. 

The  deposition  must  then  be  transmitted,  by  mail  or 
otherwise,  to  tlie  court  in  which  the  cause  is  pending,  and 
thereupon  be  opened  by  the  court  or  clerk.  Written  no- 
tice thereof  should  then  be  given  by  mail  or  otherwise  to 


§  12  Depositions  495 

the  parties.*®    It  will  be  presumed,  in  the  absence  of  evi- 
dence to  the  contrary,  that  this  notice  was  given." 

§  12.  When  and  how  objections  taken  after  return  of 
deposition. 

Objections  to  notices  of,  or  objections  to  the  manner  of, 
taking  tlie  testimony,  or  of  certifying  or  returning  the 
deposition,  will  be  regarded  as  waived,  unless  made  in 
writing  within  ten  days  after  knowledge  or  notice  of  the 
return  thereof.^"  Such  objections  must  be  noticed  for 
hearing  before  the  court,  by  motion  to  suppress  or  other- 
wise, by  the  party  making  them,  within  five  days  after 
they  are  made,  and,  if  not  so  noticed  for  hearing,  will  be 
considered  as  waived.^*  It  is  too  late  to  make  them  at  the 
trial.^^  But  a  deposition  is  not  rendered  inadmissible  by 
the  fact  that  it  has  not  been  on  file  ten  days  before  being 
offered  in  evidence.  In  such  case,  the  opposite  party  may 
m-ake  his  objections  when  the  deposition  is  offered.^^ 

But  objections  to  the  answers  contained  in  the  deposi- 
tion may  be  made  at  the  time  they  are  offered  on  the  trial, 
if  such  objections  have  also  been  made  before  the  commis- 
sioner, but  not  otherwise;  and  the  failure  to  make  objec- 

18  Jud.  Act,  eh.  17,  §  9 ;  Comp.  Cannot  object  at  the  trial  for  the 
Laws  1915,  §  12497.  first  time  that  no  proof  was  offered 

19  Simonds  v.  Cash,  136  Mich.  558.  to  show  statutory  reason  for  the  ex- 

20  Jud.  Act,  eh.  17,  §  9 ;  Comp.  amination.  St.  John  v.  Wayne  Cir- 
Laws   1915,   §12497;    Cook  v.  Bell,  c»it  Judge,  161  Mich.  299. 

18  Mich.  387 ;  Palms  v.  Richardson,  Objection  that  notice  of  taking  of 

51  Mich.  84;   Edwards  v.  Heuer,  46  deposition  did  not  name  officer  be- 

Mich.  95.     Formerly  the   time  limit  fore   whom   it   was   to   be   taken,   or 

was  three  days.  that  a  different  officer  in  fact  took 

21Cir.    Ct.   Rule    37;    Loveland   &  the  deposition,  cannot  be  first  urged 

Hinyan    Co.    v.    Waters,    192    Mich.  on  the  trial.     Cohn-€oodnian  Co.  v. 

ggO.  People's   Sav.   Bank   of   Grand    Ha- 

22  Loveland  &  Hinyan  Co.  v.  Wa-  ven,  203  Mich.  307. 

ters,    192    Mich.    680;    Record   Pub.  28  Mc Call  v.  .Jacobson,  139  Mich. 

Co.   V.    Merwin,    115    Mich.    10;    Si-  455. 
monds  v.  Cash,  136  Mich.  558. 


496  Depositions  §  12 

tion  on  the  trial  will  be  considered  a  waiver  of  the  objec- 
tions made  before  the  commissioner.^* 

§  13.  Taking-  depositions  to  perpetuate  testimony. 

To  perpetuate  testimony,  any  person  who  expects  to 
be  a  party  to  a  suit  which  may  thereafter  be  commenced 
in  any  court  of  record  may  cause  the  testimony  of  any 
witness  material  to  him  in  the  prosecution  or  defense  of 
such  suit  to  be  taken  conditionally  and  perpetuated, 
under  a  commission  issued  by  any  circuit  court  commis- 
sioner or  judge  of  a  court  of  record,  upon  affidavit  show- 
ing the  necessity  or  reason  therefor  and,  so  far  as  known, 
the  persons  interested  in  such  matter.  The  commission 
must  direct  upon  whom  notice  shall  be  served  and  to 
what  court  the  deposition  shall  be  returned,  and  such 
court  will  have  the  custody  and  control  of  it  until  it  is 
required  for  use  in  the  suit.  Testimony  so  taken  may  be 
used  in  case  it  cannot  again  be  obtained  at  the  time  of 
trial.2'* 

§  14.  Taking  testimony  by  stipulation. 

It  is  competent  for  the  parties  to  an  action,  and  parties 
interested  in  suits  to  be  begun,  to  have  testimony  taken 
and  returned  in  any  manner  agreed  upon  by  stipulation 
in  writing.^^ 

§  15.  Force  and  effect. 

Depositions  may  be  read  and  considered  in  evidence  at 
the  trial  or  on  any  hearing  and  on  appeals  and  re-trials  of 
the  same  cause  of  action,  but  the  court  may  so  regulate 
their  use  as  to  prevent  abuses,  and  may  order  the  re-tak- 
ing of  testimony  or  the  production  of  a  witness,  if  within 
the  jurisdiction,  notwithstanding  his  deposition  has  been 

24  Parsons  v.  Dickinson,  23  Mich.  26  Jud.  Act,  cli.  17,  §11;  Comp. 
56.                                                                     Laws   1915,   §12499. 

25  Jud.   Act,   ch.    17,    §10;    Comp. 
Laws  1915,  §  12498. 


§  15  Depositions  497 

taken.  And  in  any  case,  either  party  may  obtain  a  sub- 
poena and  compel  the  usual  attendance  and  the  re-ex- 
amination of  a  witness,  notwithstanding  his  deposition 
has  been  taken,  if  he  is  within  the  jurisdiction  of  the  court 
and  able  to  attend  and  give  his  testimony." 

It  has  been  held  that  before  a  deposition  taken  on  a  no- 
tice can  be  read  in  evidence  on  the  trial,  if  objection  be 
interposed,  it  must  be  made  to  appear  satisfactorily  to 
the  judge  that  the  reason  stated  in  the  notice  for  taking 
the  deposition  existed  at  the  time  it  was  taken,  and  that 
an  undisputed  affidavit  would  be  sufficient,  but  if  contra- 
dicted under  oath,  the  court  must  pass  upon  the  issue;  ^' 
but  it  seems  that  it  need  not  be  shown  that  the  reasons 
stated  in  the  affidavit  still  exist. ^^ 

When  a  deposition  has  been  taken  by  either  party,  it 
may  at  any  time  be  read  in  evidence  by  the  other  party 
on  the  trial.^° 

A  deposition  taken  while  a  case  was  pending  in  the 
federal  court  is  admissible  in  the  circuit  court  to  which  it 
was  remanded  for  want  of  jurisdiction  in  the  federal 

27  Jud.  Act,  ch.   17,   §12;    Comp.  animation.      Baker    v.    Temple,    160 

Laws    1915,    §12500;    Woolenslagle  Mich.  318. 

V.  Runals,  76  Mich.  545 ;  Johnson  v.  Continuance    to    perfect    certifica- 

Federal  Union  Surety  Co.,  194  Mich.  tion    of    deposition    of    non-resident 

292.  witness,  see  Christopherson  v.  Metro- 

That   depositions  may  be  read  in  politan  Life  Ins.  Co.,  199  Mich.  634. 

other    actions    or    proceedings,    see  28  Wanner      v.      Wayne      Circuit 

Woolenslagle    v.    Runals,    76    Mich.  Judge,   169   Mich.   231;    Paterson  v. 

545;    Campau    v.    Dubois,    39    Mich.  Wabash  R.  Co.,  54  Mich.  91. 

274.  29  Talcott  v.  Freedman,  140  Mich. 

Amendment  of  process  or  pleading  32,  37,  expl  'g  Enilaw  v.  Emlaw,  20 

not    altering   the    substance    of    the  Mich.    11,    as    having   been    decided 

issue,  does  not  render  deposition  in-  under   an  earlier   statute.     See   also 

admissible.      Holdridge   v.   Farmers'  Taylor  v.  Taylor's  Estate,  138  Mich. 

&  Mechanics'  Bank,  16  Mich.  66.  658. 

A  deposition  used  as  evidence  of  80  Cir.  Ct.  Rule  37.     See  also  Mc- 

the    very    facts   plaintiff    sought    to  Donald    v.    Smith,    139    Mich.    211, 

show  by  his  direct  testimony  is  ad-  holding  party  may  read  cross-exami- 

missible    in    its    entirety,    and    the  nation  of  witnesses  from  deposition 

court  cannot  exclude  the  direct  ex-  taken  by  his  opponent. 
1  Abbott— 32 


498  Depositions  §  15 

court,  where  counsel  had  notice  of  the  taking  of  the 
deposition  and  cross-examined  the  witness.^^  But  a  depo- 
sition taken  in  another  action,  brought  by  different  coun- 
sel, and  where  the  parties  are  not  the  same,  is  not  ad- 
missible.^'^ 

The  statute  relating  to  the  time  to  make  objections  to 
depositions,  and  limiting  it  to  ten  days  after  the  return, 
does  not  require  the  deposition  to  be  filed  ten  days  before 
it  is  admissible  in  evidence.^'  Where  a  party  reads  the 
cross-examination  of  witnesses  from  depositions  taken  by 
his  adversary,  the  latter  cannot  complain  that  the  direct 
examination  was  not  read  since  it  is  his  duty  to  read  it 
himself  if  to  his  interest.'*  If  a  deposition  is  taken  under 
a  stipulation  to  use  it  only  if  the  witness  should  be  unable 
to  attend  court,  it  may  be  read  where  affidavits  as  to  the 
inability  of  the  witness  to  attend  court  are  met  only  by 
unsworn  statements  of  counsel.'*  The  answer  of  a  wit- 
ness is  not  admissible  unless  it  would  have  been  admitted 
had  he  been  examined  in  open  court,'^  but  the  death  of 
the  witness  before  the  cause  is  heard  does  not  render  his 
deposition  inadmissible." 

The  admission  in  evidence  of  a  second  deposition,  taken 
after  due  notice,  to  bring  out  facts  not  shown  in  the  first 
deposition,  rests  in  the  sound  discretion  of  the  court.'' 

§  16.  Fees  for  taking". 

The  fees  for  taking  depositions  are  fixed  by  law  as  fol- 
lows: For  taking,  certifying,  sealing  and  forwarding 
depositions,  two  dollars,  and  for  each  one  hundred  words 

81  Johnson      v.      Federal      Union  35  Styles    v.    Village    of    Decatur, 

Surety  Co.,  194  Mich.  292.  Ul  Mich.  443. 

32Larsen   v.   Home   Tel.    Co.,   164  36  Bliss  v.  Paine,  11  Mich.  92. 

Mich.  295,  32.3.  37  Matson    v.    Melchor,    42    Mich. 

33McCall    Co.    v.    Jacobson,    139  477. 

Mich.  455.  38  Fredonia     National      Bank     v. 

34  McDonald  v.   Smith,   139   Mich.  Tommei,  131  Mich.  674. 
211. 


Detinue  499 

contained  in  a  deposition,  ten  cents,  which  will  be  con- 
sidered as  costs  in  the  case;  and  for  copies  of  testimony 
furnished  to  any  party,  three  cents  for  each  one  hundred 
words  contained  in  such  copy.  Each  party  must  pay  for 
his  own  examinations  or  cross-examinations  in  the  first 
instance.^' 

DEPUTIES 

See  Clerks  of  Coxibt;  Sheriffs. 

DESCRIPTION 

See  Attachment;  Replevin;  Ejectment. 

DETENTION 

See  Replevin, 

DETINUE 

The  action  of  detinue  was  formerly  the  only  remedy 
by  suit  at  law  for  the  recovery  of  a  personal  chattel  in 
specie  except  in  those  instances  where  the  party  could 
obtain  possession  by  replevying  the  same  and  by  action 
of  replevin,^  but  now  it  has  been  abolished  by  statute  in 
this  state  ^  and  its  place  supplied  by  the  action  of  re- 
plevin. Detinue  was  an  action  for  depriving  one  of  the 
possession  of  personalty  acquired  originally  by  lawful 
means.  Thus,  if  A  lends  B  a  horse  and  B  refuses  to  re- 
store it,  the  injury  consists  in  the  detaining,  not  in  the 
original  taking,  and  possession  could  have  been  recov- 
ered by  an  action  of  detinue.^ 

The  action  is  classified  by  some  authorities  as  in  form 
ex  contractu  and  by  others  as  in  form  ex  delicto.    It  is 

39Jud.   Act,  ch.  17,    §13;    Comp.  3  And.  Law  Diet.  tit.  "Detinue," 

Laws  1915,  §  12501,  citing    3    Cooley's    Bl.    Comm.    lol, 

11    Chit.   PI.    136.  152;    Story,   Eq.   sees.   692-711,  90G. 

2  Jud.  Act,  ch.  11,  §1;  Comp. 
Laws  1915,  §  12350.  See  also  Ac- 
tions. 


500  Detinue 

somewhat  peculiar  in  its  nature,  and  it  may  be  difficult 
to  decide  which  is  the  proper  classification.  In  truth, 
it  seems  to  belong  almost,  if  not  quite,  as  much  to  one 
class  as  to  the  other.  The  history  of  the  action,  from 
which  it  appears  that  detinue  was  originally  no  other 
than  an  action  of  debt  in  the  detinet,  confirms  the  posi- 
tion that  it  should  be  considered  rather  as  an  action  ex 
contractu  than  one  ex  delicto,  as  does  also  the  fact  that 
it  could  be  joined  with  the  action  of  debt.*  But  it  is  also 
said  that  the  gist  of  the  action  is  not  the  breach  of  a 
contract,  but  the  wrongful  detainer,  and  this,  with  other 
reasons  that  might  be  presented,  may  justify  its  treat- 
ment as  an  action  ex  delicto.* 

DIAGRAMS 

See  Trial. 

DICTA 

See  CouETS. 

DIRECT  EXAMINATION 

See  Witnesses. 

DIRECTING  VERDICT 

See  Teial. 

DIRECTORS 

See  Quo  Warranto. 

DISBARMENT 

See  Attorneys. 

DISBURSEMENTS 

See  Costs;  Supreme  Court. 

4  2   Eeevc,   Hist.   Eng.   Law,   261,  to  think  of  tlie  latter  as  an  action 

333,  336;   3  Eeeve,  Hist.  Eng.  Law,  on    contract,    without    regarding    its 

gg    74  phase  as  an  action  on  the  case,  there 

6  In    respect    of    its    two-fold    na-  was  a  tendency  to  regard  detinue  as 

ture,    detinue   closely   resembled    as-  in  form  ex  delicto  and  to  ignore  the 

siimpsit,  and  while  it  was  the  usage  element  of  contract  in  it. 


§  1         Discontinuance  and  Voluntary  Nonsuit        501 
DISCHARGE 

See  References;  Bail;   Executions;  Jury;  Trial;  Mortgages;  Con- 
tempt. 

DISCLOSURE 

See  Garnishment. 

DISCONTINUANCE  AND  VOLUNTARY  NONSUIT 

§    1.  Eight  to  discontinue  or  submit  to  nonsuit. 

§    2.  Withdrawal  of  part  of  claim. 

§    3.  Payment  of  costs  as  condition  precedent. 

§    4.  Effect  of  discontinuance. 

§    5.  Discontinuance  as  to  part  of  defendants. 

§    6.  Necessity  for  where  too  many  sued. 

§    7.  Discontinuance  as  to  some  of  defendants  when  others  are  in  default. 

§    8.  Discontinuance  of  appeal  cases. 

§    9.  Discontinuance  as  to  some  of  several  defendants  in  actions  ex  delicto. 

§  10.  Court  may  order  dismissal  as  to  any  defendant. 

§  11.  Setting  aside  or  waiver  of  nonsuit. 

§  1.  Right  to  discontinue  or  submit  to  nonsuit. 

The  Judicature  Act  provides  that  plaintiff  shall  not 
be  allowed  to  discontinue  his  suit  or  submit  to  a  non- 
suit without  the  consent  of  the  defendant,  where  defend- 
ant has  given  notice  of  a  set-off  or  recoupment.^  The 
1916  Circuit  Court  Rules  provide  that ' '  the  plaintiff  may, 
at  any  time,  upon  notice  to  the  defendant  or  his  attorney, 
and  on  the  payment  of  costs,  discontinue  his  suit  by 
order  filed  in  the  cause,  except  where  a  recoupment  or 
a  set-off  is  asserted  by  the  defendant. "  ^  A  statute  passed 
in  1915  provides  that  ''whenever  the  defendant  shall 
have  entered  upon  his  defense  to  the  action  in  open  court, 
the  plaintiff  shall  not  be  peimitted  to  discontinue  his  suit 
or  submit  to  a  nonsuit  without  the  consent  of  the  defend- 
ant." *  It  will  be  noticed  that  there  is  a  conflict  between 
the  latter  statute  and  the  rule  of  court.*    At  common 

IJud.    Act,    ch.    15,    §8;    Comp.  8  Pub.  Acts  1915,  No.  200. 

Laws  1915,  §12475.  4  "If   both   the   statutes   and  the 

2  Cir.    Ct.   Eule  43.  rule  remain  in  force  untU  the  ques- 


502        Discontinuance  and  Voluntary  Nonsuit         §  1 

law,  plaintiff  could  submit  to  a  nonsuit  at  any  time  be- 
fore verdict;  ^  and  the  1915  statute  is  designed,  it  is  said, 
'*to  prevent  a  plaintiff  from  discontinuing  his  suit  or 
submitting  to  a  nonsuit  without  the  consent  of  the  de- 
fendant, where  the  defendant,  who  had  been  to  the  ex- 
pense and  trouble  of  procuring  witnesses,  had  entered 
upon  his  defense  in  open  court  by  putting  in  his  testi- 
mony upon  the  merits,  and  that  the  act  was  not  intended 
to  apply  to  those  cases  where  no  witnesses  were  procured, 
no  defense  made  on  the  facts,  and  only  legal  questions 
are  raised."^  In  its  discretion,  the  court  may  refuse  to 
withdraw  a  juror  because  of  an  absent  witness  J 

Form  of  Rule  to  Discontinue  on  Payment  of  Costs 
(Title  of  court  and  cause.) 

On  motion  of  J.  K.,  attorney  for  the  above-named  plaintiff,  it  is  ordered 
that  this  action  be  discontinued,  upon  the  payment  of  the  said  defendant's 
costs,  to  be  taxed. 
Dated,  etc. 

J.  K., 
Attorney  for  Plaintiff. 

Fonn  of  Rule  by  Consent  to  Discontinue  Without  Costs 

(Title  of  court  and  cause.) 

On   reading  and   filing  consent  in  this   cause,  and  on  motion  of   J.   K., 
attorney   for   the    above-named   plaintiff,   it   is   ordered    that    this   suit    be, 
and  the  same  hereby  is,  discontinued,  without  costs. 
Dated,  etc. 

J.  K., 
Attorney  for  Plaintiff. 

tion    is    raised    as    to    whether    the  Act."      Searl's    Mich.    Court    Eules 

power   to   control   mere   matters    of  199- 

court  procedure  is  vested  in  the  su-  5  Mintz    v.    Soule,    200    Mich.    9; 

preme  court  instead  of  in  the  legis-  I^^^'is    v.    Detroit    United    Ey.,    162 

lature,  by  the  Constitution,  a  vexed  ^^^^^-    240;     Deneen    v.    Houghton 

question-which    should    have    been  County  St.  R.  Co.,  150  Mich.  235. 

settled  fifty  years  ago-may  finally  '  ^^^*^,   ^-    ^«"^^'    ^00    Mich.    9, 

,       -i.ji-,     v.         ■!••        .V  where  defendant  had  not  put  in  any 

be  decided;   but  a  decision  thereon  .,  ,        ,     ,  ,  ^„  ,;' 

evidence  but  had  moved   for   a   di- 
m  accordance  with  the  judgment  of      ^^^^^^  ^^^^.^^  ^^  ^^^  ^^^^^  ^^  p^^.^ 

many    able    lawyers,    may    also    en-      tiff's  case. 

danger   certain  provisions— but   not  7  Howeroft  v.  Detroit  United  Ry., 

necessarily    all — of    the    Judicature      163  Mich.  608,  611. 


§  3         Discontinuance  and  Voluntary  Nonsuit        503 

Form  of  Rule  to  Discontinue,  the  Defendant's  Costs  Having  Been  Paid 

The  costs  of  the  said  defendant  in  this  suit  having  been  fully  paid, 
on  motion  of  J.  K.,  attorney  for  the  above-named  plaintiff,  it  is  ordered 
that  this  suit  be,  and  the  same  hereby  is,  discontinued. 

Dated,  etc. 

Attorney  for  Plaintiff. 

Form  of  Judgment  on  a  Voluntary  Non-Suit  When  the  Case  Is  Tried 

by  a  Jury 

(Title  of  cause.) 

In  this  cause,  the  parties  being  in  court,  by  their  respective  attorneys, 
ready  for  trial,  thereupon  came  a  jury,  to  wit  (insert  the  names  of  the 
jurors),  good  and  lawful  men,  who,  being  duly  chosen,  tried  and  sworn 
well  and  truly  to  try  the  issue  between  the  parties,  sat  together  and  for 
a  time  heard  the  proofs  and  allegations  of  the  parties,  whereupon  the  said 
plaintiff  now  here  voluntarily  submits  to  become  non-suit  and  does  not 
further  prosecute  his  suit  against  the  said  defendant.  Therefore,  it  is 
considered  that  the  said  plaintiff  take  nothing  by  his  suit,  and  that  the 
defendant  do  go  thereof  without  day;  and  it  is  further  considered  that 
the  defendant  do  recover  against  the  said  plaintiff  his  costs  and  charges 
by  him  about  his  defense  in  this  behalf  expended,  to  be  taxed,  and  that  the 
defendant  have  execution  therefor. 

§  2.  Withdrawal  of  part  of  claim. 

However,  the  plaintiff  may  withdraw  certain  items  of 
his  claim  from  the  consideration  of  the  court  and  jury 
without  the  consent  of  the  defendant  where  the  defend- 
ant asserts  a  set-off,^  although,  on  principle,  he  would 
not  be  allowed,  without  the  consent  of  the  defendant,  to 
withdraw  any  item  as  to  which  the  defendant  has -given 
notice  of  recoupment. 

§  3.  Payment  of  costs  as  condition  precedent. 

It  is  not  necessary  that  the  costs  should  be  actually 
paid  by  the  plaintiff  before  the  discontinuance  of  his  suit 
becomes  effectual.  The  rule  requiring  payment  of  costs 
is  to  be  construed  as  authorizing  discontinuance  on  the 
terms  of  paying  the  costs,  and,  when  the  notice  of  dis- 
continuance has  been  given,  the  discontinuance  is  deemed 
to  be  in  effect,  although  the  costs  be  not  paid.    They  are 

SBusch  V.  Jones,  94  Mich.  223. 


504        Discontinuance  and  Voluntary  Nonsuit        §  3 

to  be  paid  when  taxed.  If  the  plaintiff  then  refuses  to 
pay  them,  he  would  lose  the  benefit  of  the  rule  for  dis- 
continuance, and  his  suit  would  be  treated  as  still  pend- 
ing for  the  purpose  of  a  motion  to  dismiss  a  new  suit 
commenced  by  him  for  the  same  cause  of  action,®  or  the 
defendant  may  proceed  in  the  cause,  treating  the  rule 
as  a  nullity." 

§  4.  Effect  of  discontinuance. 

The  discontinuance  of  a  suit  is  not  conclusive  of  the 
plaintiff's  cause  of  action,  but  operates  merely  to  termi- 
nate the  particular  suit,  leaving  the  plaintiff  at  liberty 
in  all  respects  to  commence  another  as  if  the  discontinued 
suit  had  never  been  commenced."  This  right,  however, 
in  cases  where  the  defendant  is  held  to  bail,  will  not  be 
allowed  to  be  exercised  to  such  an  extent  and  in  such  a 
manner  that  it  becomes  apparent  that  the  purpose  of  the 
plaintiff  is  unnecessarily  to  oppress  the  defendant." 

Where  there  are  two  or  more  defendants,  a  discontin- 
uance as  to  some  of  them  will  operate  as  a  discontinuance 
as  to  the  others  also,  unless  the  action  might  have  been 
maintained  against  the  others  in  the  first  instance.  Thus, 
a  discontinuance  as  to  one  of  several  joint  obligors  is  a 
discontinuance  as  to  all,"  but  a  discontinuance  as  to  one 
of  two  obligors  severally  bound  or  as  to  part  of  several 

OSlocomb   V.    Thatcher,   20   Mich.  v.    Thatcher,    20    Mich.    52;    Shank 

52.  V.      Woodworth,     111     Mich.     642; 

lOSlocomb   V.   Thatcher,  20   Mich.  French  v.  Weise,  112  Mich.  586. 
52;    Morrison   v.    Ide,    4    How.    Pr.  12  1  Archb.  Pr.  53. 

(N.  Y.)   304,  3  Code  R.  27;   James  13  Munn  v.  Haynes,  46  Mich.  140; 

V.  Delevan,  7  Wend.   (N.  Y.)    511;  Van    Leyen    v.    Wreford,   81.  Mich. 

Huntington  v.  Forkson,  7  Hill    (N.  606;    Winslow    v.    Herrick,   9   Mich. 

Y.)  195;  Hicks  v.  Brennan,  10  Abb.  380;  Anderson  v.  Robinson,  38  Mich. 

Pr.     (N.    Y.)     420;     McKenster    v.  407;    Ballon   v.    Hill,    23   Mich.    60; 

Van  Zandt,   1   Wend.    (N.   Y.)    13;  Candee  v.  Clark,  2  Mich.  255;  Mace 

Pignolet  V.  Daveu,  2  Hill    (N.  Y.)  v.    Page,   33    Mich.   38;    J.   A.   Fay 

584.  &    Co.    V.    James    Jenks    &    Co.,    78 

11  Deneen     v.     Houghton     County  Mich.  312;  Post  v.  Shafer,  63  Mich. 

St.  R.  Co.,  150  Mich.  235;  Slocomb  85. 


§  5        Discontinuance  and  Voluntary  Nonsuit        505 

joint  tortfeasors,  or,  in  general,  as  to  any  party  or  par- 
ties either  unnecessarily  or  improperly  joined  as  defend- 
ants, does  not  effect  a  discontinuance  as  to  the  remaining 
defendant  or  defendants.^* 

The  discontinuance  of  a  suit  commenced  by  capias  ad 
respondendum  will  entitle  the  defendant  to  be  discharged 
from  arrest,  if  he  is  in  custody,  and,  if  he  has  given  an 
appearance  bond,  it  releases  both  the  sureties  thereon 
and  the  sheriff  from  liability  for  the  defendant's  appear- 
ance by  putting  in  and  perfecting  special  bail.  If  special 
bail  has  been  put  in,  a  discontinuance  terminates  the 
liability  of  such  bail. 

The  discontinuance  of  a  suit  in  which  property  has 
been  attached  releases  the  attachment  lien.  If  property 
has  been  delivered  to  the  plaintiff  on  a  writ  of  replevin 
or  is  in  the  custody  of  the  sheriff  awaiting  the  execution 
of  delivery  bonds,  a  discontinuance  of  the  suit  entitles 
the  defendant  to  a  return  of  the  property,  and  if  the  prop- 
erty, having  been  replevied,  has  been  returned  to  the  de- 
fendant on  his  giving  a  sufficient  delivery  bond,  the  dis- 
continuance of  the  suit  effectuates  the  discharge  of  such 
bond.  And  where,  as  ancillary  to  a  suit,  garnishment 
proceedings  are  pending,  a  discontinuance  of  such  suit 
terminates  also  the  garnishment  proceedings. 

§  5.  Discontinuance  as  to  part  of  defendants. 

It  is  provided  by  rule  of  court  that,  when  an  action 
is  brought  against  several  persons,  the  plaintiff  shall, 
at  any  time  before  the  final  submission  of  the  cause,  be 
allowed  to  discontinue  as  against  any  of  the  defendants, 
upon  the  payment  of  their  taxable  costs  and  such  other 
terms  as  the  court  shall  direct,  and  that  the  declaration 
will  thereupon  be  deemed  to  be  amended  and  the  case 
may  proceed  against  the  other  defendants  in  like  man- 

14  Thomas  v.   Hoffman,   22   Mich.      Shipman  v.  Allee,  29  Tex.  17;  Allen 
45;    Cook  v.  Perry,   43   Mich.   623;       v.  Craig,  13  N.  J.  L.  294. 
Craft   V.    Smith,    35    N.   J.   L.    302; 


506  DiSCOXTIXUAXCE    AXD    VOLUXTARY    NOXSUIT  §  5 

ner  as  if  the  action  had  been  originally  brought  against 
them  alone. ^^  The  parties  against  whom  he  enters  judg- 
ment cannot  complain  of  the  discontinuance  as  to  other 
parties  unless  the  latter  are  jointly  obligated  with  them.^^ 
This  rule  does  not  in  any  respect  change  the  well  settled 
principles  relating  to  the  liability  of  several  persons 
jointly,  or  jointly  and  severally,  obligated,  but  seeks  only 
to  mitigate,  for  the  promotion  of  justice,  the  inconven- 
ience formerly  consequent  upon  the  misjoinder  of  parties 
defendant.  It  was  not  intended  to  transform  a  joint  ob- 
ligation into  a  several  one  or  to  permit  a  plaintiff  to  re- 
cover upon  a  joint  obligation  against  fewer  than  all  the 
joint  obligors  or  against  more  than  one  and  fewer  than 
all  jointly  and  severally  bound,  but  to  enable  him  to  re- 
cover against  such  defendants  as  might  have  been  pro- 
ceeded against  regularly  in  the  first  instance.^"'  The  rule 
is  not  designed  to  change  any  legal  rights,  but  merely 
to  enable  a  plaintiff  who  has  sued  more  parties  than  he 
can  recover  against  to  amend  his  case  by  declaring 
against  the  real  debtors."  The  discontinuance  in  these 
cases  is  not  a  matter  of  right,  but  must  be  by  leave  of 
court  and  on  such  terms  as  will  do  no  injustice,  and, 
where  a  discontinuance  ought  not  to  have  been  allowed, 
its  allowance  is  reversible  error, ^^ 

§  6.  Necessity  for  where  too  many  sued. 

Under  the  early  practice,  where  it  appeared  that  a 
plaintiff  had  sued  too  many  defendants  as  joint  obligors, 

ISCir.    Ct.    Rule    43,    §2,    which  Mieh.   140;   Root  &  MeBride   Co.  v. 

modifies    former    rule    27    in    minor  Walton  Salt  Ass'n,  140  Mich.  441 

respects    as    to    costs    and    amend-  McPhersou  v.  Pinch,  119  Mich.  36 

ment;  Cook  v.  Perry,  43  Mich.  623.  Wright   v.   Reinelt,  118   Mich.   639 

Actual  amendment  not  necessary,  Durgin    v.    Smith,    116    Mich.    239 

see  Rimmele  v.  Huebner,  190  Mich.  Hoek   v.    Allendale   Tp.,   161    Mich. 

247,  251.  571. 

16  Phelps  V.  Church,  65  Mich.  231.  18  Winslow    v.    Herrick,    9    Mich. 

17  Anderson  v.  Robinson,  38  Mich.  380. 

407.      See    also    Codd    v.    Seitz,    94  19  Post   v.    Shafer,    63    Mich.    So; 

Mich.    191;     Munn    v.    Haynes,    46       Yawkey  v.  Richardson,  9  Mich.  529. 


§  6  DiSCOXTIXUAXCE    AND    VoLUNTAKY    NONSUIT  507 

his  only  recourse,  in  order  to  save  his  action,  was  to  ap- 
ply for  leave  to  discontinue  as  to  the  defendants  im- 
properly joined,  but  now  it  is  provided  by  rule  that,  in 
case  an  action  is  brought  against  two  or  more  defend- 
ants, the  plaintiff  shall  not  be  required  to  discontinue 
as  to  any  of  them,  but  the  juiy  shall  show  by  their  ver- 
dict or  the  court  by  its  finding,  in  a  trial  by  the  court 
without  a  jury,  which  of  them  are,  and  which  of  them 
are  not,  liable  to  the  plaintiff,  and  judgment  shall  be 
given  accordingly.^"  This  rule  was  adopted  with  a  view 
of  preventing  mistrials  in  cases  where,  before  its  adop- 
tion, the  plaintiff  failed  entirely  because  of  his  inability 
to  establish  a  liability  against  all  of  the  defendants.^^ 
This  rule  of  court  is  not  confined  in  its  application  to 
actions  ex  contractu  but  also  applies  to  actions  ex  de- 
licto.^^  Under  this  rule,  plaintiff  cannot  be  required  to 
elect,  at  the  beginning  of  the  trial  or  during  its  progress, 
whether  he  will  ask  for  a  joint  judgment  or  a  several 
judgment.^^  So  this  rule  has  been  applied  so  as  to  defeat 
a  motion  to  compel  plaintiff  to  elect  between  two  defend- 
ants where  it  was  admitted  that  only  one  of  the  defend- 
ants was  liable,  but  which  one  was  liable  was  a  question 
of  fact  for  the  jury.^*    There  is  ' '  nothing  in  this  rule  that 

20  Cir.  Ct.  Bule  43,   §  3.     To  like  there  is  no  evidence  at  the  close  of 

effect,   see   Jud.    Act,   ch.    12,    §  15 ;  the    plaintiff 's    case.      Johnston    v. 

Comp.    Laws    1915,    §12366;    Root  Cornelius,    193    Mich.    115;    Pruner 

&     McBride     Co.     v.    Walton     Salt  \.  Detroit  United  Ry.,  173  Mich.  146. 

Ass'n,    140    Mich.    441;    Durgin    v.  21  Durgin  v.  Smith,  115  Mich.  239; 

Smith,    116    Mich.    239;    Wright    v.  McPherson  v.   Pinch,   119  Mich.  36. 

Eeinelt,  118  Mich.  639;   McPherson  22  Pruner  v.   Detroit  United  Hj., 

V.    Pinch,    119    Mich.    36;    Munn    v.  173    Mich.    146,   149,   holding   there- 

Haynes,    46    Mich.     140;     Codd    v.  under   that   it   is   proper  to   join   a 

Seitz,    94    Mich.    193;    Rimmele    v.  city    and    a  street   car   company   as 

Huebner,    190   Mich.    247;    Mally   v.  defendants  in  an  action  for  personal 

Excelsior    Wrapper    Co.,    181    Mich.  injuries. 

568;   Anderson  v.  Fruitvale  Transp.  23  Rimmele  v.  Huebner,  190  Mich. 

Co.,  195  Mich.  734.  247,   250. 

The  court  may  direct  a  verdict  as  24  Mally    v.    Excelsior    Wrapping 

to     any    defendant    against    whom  Co.,  181  Mich.  568,  574. 


508        Discontinuance  and  Voluntary  Nonsuit         §  6 

interferes  with  the  court's  authority  and  duty  to  direct 
a  verdict  in  behalf  of  any  joint  defendant  against  whom 
there  is  no  evidence  of  liability,  at  the  close  of  the  plain- 
tiff's case;"^^  and  the  rule  does  not  preclude  the  grant- 
ing of  a  motion  in  the  nature  of  a  demurrer  to  dismiss 
the  action  as  to  a  moving  defendant  on  the  ground  that 
no  cause  of  action  is  stated  against  liim.^^  It  was  held 
that  this  rule  had  no  application  to  cases  appealed  from 
justice's  court.^' 

§  7.  Discontinuance  as  to  some  of  defendants  when  others 
are  in  default. 

Where  a  plaintiff  has  declared  against  several  persons 
upon  a  joint  obligation  and  has  entered  the  default  of 
some  of  them,  he  cannot  discontinue  as  to  the  others  and 
assess  the  debt  or  damages  against  the  defendants  in 
default,  for  the  default  was  taken  upon,  and  was  in  ef- 
fect an  acknowledgment  of,  the  particular  obligation  de- 
clared upon,  and  not  any  other  whatever,  and  the  de- 
fendants must  be  given  an  opportunity  to  be  heard  upon 
the  new  form  of  the  declaration.*^^  The  proper  practice 
would  be  to  serve  the  amended  declaration  on  the  de- 
faulted defendants  and  give  them  the  opportunity  to  con- 
test the  right  to  proceed  against  them  alone.^® 

But  where  a  plaintiff  has  joined  the  several  parties  to 
a  bill  of  exchange  or  promissory  note,  instead  of  bring- 
ing separate  actions  against  them,  and  a  default  has  been 
entered  against  part  of  them,  he  may  discontinue  as  to 
the  others  and  proceed  to  judgment  against  the  defend- 
ants in  default  in  the  same  manner  as  if  the  suit  had 
been  commenced  against  them  alone.^" 

26  Johnston  v.  Cornelius,  193  Mich.  28  Munu  v.  Haynea,  46  Mich.  140; 

115.  Winslow  V.  Herrick,  9  Mich.  380. 

26  Bowers  v.  Gates,  201  Mich.  146.  29  Munn  v.  Haynes,  46  Mich.  140. 

27  Wright  v.  Keinelt,  118  Mich.  30  Maynard  v.  Penniman,  10  Mich. 
638.  153;   Bcals  v.   Smith,  91  Mich.  146. 


§  10      Discontinuance  and  Voluntary  Nonsuit        509 

§8.  Discontinuance  of  appeal  cases. 

The  fact  that  a  suit  pending  in  a  circuit  court  did  not 
originate  there,  but  was  brought  there  by  an  appeal  from 
a  justice's  court,  is  generally  immaterial  so  far  as  the 
right  of  the  plaintiff  to  discontinue  is  concerned.  He 
may  discontinue  his  suit  in  the  same  manner  as  if  the 
suit  were  commenced  in  the  circuit  court.^^  But  it  has 
been  held  that  the  rule  authorizing  the  plaintiff  to  dis- 
continue as  to  any  of  several  defendants  at  any  time  be- 
fore the  submission  of  the  cause  ^^  does  not  apply  to  cases 
appealed  from  justice 's  court,^'  although  it  has  also  been 
held  that  where,  in  an  appeal  case,  it  appeared  that  one  of 
several  defendants  was  not  liable  because  of  his  infancy, 
the  plaintiff  might  discontinue  as  to  him.^* 

§  9.  Discontinuance  as  to  some  of  several  defendants  in 
actions  ex  delicto. 
One  who  is  injured  by  a  tort  for  which  several  persons 
are  liable  may  generally  include  all  or  any  number  of 
them  in  one  action  as  parties  defendant.'^  When,  there- 
fore, several  joint  tort-feasors  are  joined  in  one  action, 
the  plaintiff  may  discontinue  his  suit  as  to  any  of  them 
and  proceed  against  the  others  in  the  same  manner  as  if 
the  latter  had  been  originally  the  only  defendants.'^ 

§  10.  Court  may  order  a  dismissal  as  to  any  defendant. 

While  a  rule  previously  alluded  to ''  provides  that  the 
plaintiff  shall  not  be  required  to  discontinue  his  suit  as 
to  any  of  several  defendants,  it  was  not  thereby  intended 
to  deprive  any  defendant  of  the  riglit  to  object  to  such 

31  Taylor  v.  Dansby,  42  Mich.  82 ;  Co.,   54  Mich.   91 ;    Bish.   Non-Cont. 

Chandler  v.  Lawrence,  3  Mich.  261;  Law,  sec.  521. 
Franks  v.  Fecheimer,  44  Mich.  177.  36  Allen  v.  Craig,  13  N.  J.  L.  294; 

82  Cir.   Ct.  Eule  43,   §  3.  Ilondrickson    v.    Herbert,   38   N.    J. 

33  Anderson  v.  Eobinson,  38  Mich.  L.  298 ;  Reynolds  v.  Simpkins,  67 
407.  Ala.  378. 

34  Taylor  v.  Dansby,  42  Mich.  82.  87  Cir.  Ct.  Rule  43,  §  3. 
86  Patterson    v.    Wabash,   etc.,   R. 


510        Discontinuance  and  Voluntary  Nonsuit       §  10 

defects  or  irregularities  in  the  service  of  process  or  other 
proceeding  as  entitle  him,  on  a  seasonable  motion,  to 
have  the  suit  dismissed  as  to  him.^^ 

§  11.  Setting-  aside  or  waiver  of  non-suit. 

After  a  plaintiff  has  submitted  to  a  non-suit,  he  may 
move  the  court  to  set  it  aside.  Such  an  application  is 
addressed  to  the  discretion  of  the  court,^®  and  it  may  be 
granted  either  absolutely  or  upon  the  payment  of  costs 
or  such  other  reasonable  terms  as  the  court  may  see  fit 
to  attach,*''  even  tliough  another  suit  by  the  plaintiff 
would  be  barred  by  the  statute  of  limitations.*^  If  the 
non-suit  is  set  aside,  the  cause  is  open  for  hearing.*^  A 
non-suit  may  also  be  waived  by  the  defendant,  either  ex- 
pressly or  by  implication,  as,  where,  under  the  former 
practice,  the  defendant  noticed  the  case  for  trial,*^  and, 
in  like  manner,  may  the  conditions  upon  which  a  non- 
suit is  vacated  be  waived  by  the  defendant.** 

DISCOVERY  AND  INSPECTION  OF  PAPERS 

§  1.  In  general. 

§  2.  Mode  of  applying  and  to  whom. 

§  3.  Grounds  for  application. 

§  4.  Grounds  for  refusing  application. 

§  5.  Contents  of  petition. 

§  6.  Eule  or   order. 

§  7.  Vacation  of  order. 

§  8.  Effect  of  order  as  stay. 

§  9.  Penalty  for  disobedience  of  order. 

§  10.  Effect   of  production   of  papers. 

Cross-Eefcreiiccs:    Mandamus;   Evidence. 

38  See   §  6,  ante.  *1  Eeaunie      v.      Wayne      Circuit 

39  People     v.     St.     Clair     Circuit       .Judge,   130  Mich.   245. 

Judge,  37   Mich.   131.  42  Johnson    v.    Shepard,    35    Mich. 

Where  obtained  fraudulently,  dis-  115;      Lindsay     v.     Wayne     Circuit 

continuance     should     be     set     aside.  Judge,  63  Mich.  735. 

Thompson  v.  Bay  Circuit  Judge,  138  43  People       v.       Wayne       Circuit 

Mich.  81.  Judge,  35  Mich.  498. 

40Higley  v.  Lant,  3  Mich.  612.  44  Higley  v.  Lant,  3  Mich.  612. 


§  3  Discovery  and  Inspection  of  Papers  511 

§  1.  In  general. 

By  statute,  *'tlie  supreme  court  shall  have  power,  in 
all  such  cases  as  shall  be  deemed  proper,  to  compel  any- 
party  to  a  suit  pending  therein,  to  produce  and  discover 
books,  papers  and  documents  in  his  possession  or  power, 
relating  to  the  merits  of  any  such  suit,  or  of  any  defense 
therein,"  and  such  court  shall,  by  general  rules,  pre- 
scribe the  cases  in  which  such  discovery  may  be  com- 
pelled, where  the  same  are  not  herein  provided,  and  the 
costs  of  such  proceedings  shall  always  be  awarded  in  the 
discretion  of  the  court. ' '  ^  Pursuant  'to  the  latter  clause 
the  present  Circuit  Court  Rule  49  provides  in  detail  in 
regard  thereto. 

§  2.  Mode  of  applying  and  to  whom. 

The  application  is  by  petition  which  must  be  made  to 
any  circuit  court  in  term  time  or  to  the  judge  thereof  in 
vacation.^ 

§3.  Grounds  for  application. 

By  rule  of  court,^  application  may  be  made  to  compel 
the  production  and  discovery  of  books,  papers  and  docu- 
ments relating  to  the  merits  of  any  suit  pending  in  such 
court,  or  of  any  defense  to  such  suit,  in  the  following 
cases: 

1.  By  the  plaintiff,  to  compel  the  discovery  of  papers 
or  documents  in  the  possession  or  under  the  control  of 
the  defendant,  which  may  be  necessary  to  enable  the 
plaintiff  to  declare  or  answer  to  any  pleading  of  the  de- 
fendant. 

1  Jud.  Act,  ch.  1,  §§17,  18;  Comp.  tainable,  mandamus  lies  to  vacate 
Laws  1915,   §§12022,  12023.  an   order  requiring  plaintiff  to  pro- 

2  Jud.  Act,  ch.  1,  §19;  Comp,  duce  certain  books  and  papers  to 
Laws  1915,  §12024;  Cir.  Ct.  Rule  prepare  for  trial  to  maintain  such 
49.  defense.       International     Harvester 

3  Cir.  Ct.  Eule  49.  Co.    v.    Eaton    Circuit    Judge,    163 
If    alleged    defense    is    not    main-       Midi.  .1;". 


512  Discovery  and  Inspection  of  Papers  §  3 

2.  The  plaintiff  may  be  compelled  to  make  the  dis- 
covery of  papers  or  documents,  where  the  same  shall  be 
necessaiy  to  enable  the  defendant  to  answer  any  plead- 
ing of  the  plaintiff. 

3.  The  plaintiff  may  be  compelled,  after  declaring,  and 
the  defendant,  after  pleading,  to  produce  and  discover 
all  papers  or  documents  on  which  the  action  or  defense 
is  grounded. 

4.  After  issue  joined  in  any  action,  either  party  may 
be  compelled  to  produce  and  discover  all  such  books, 
papers  and  documents,  as  may  be  necessary  to  enable 
the  party  applying  for  such  discovery  to  prepare  for  the 
trial  of  the  cause. 

In  short,  a  discovery  may  be  compelled  either  to  en- 
able a  party  to  plead  or  to  enable  a  party  to  prepare  for 
trial. 

§  4.  Grounds  for  refusing-  application. 

It  is  no  ground  for  refusal  that  the  adverse  party  does 
not  admit  the  existence  of  the  papers,  nor  that  other  per- 
sons are  interested  therein,  nor  that  the  facts  can  all  be 
brought  out  by  calling  the  proper  parties  as  witnesses.* 

Except,  perhaps,  where  a  tnist  relation  exists,^  produc- 
tion of  books  and  papers  will  not  be  ordered  to  prepare 
for  trial  unless  their  production  is  indispensably  neces- 
sary,^ and  hence  will  not  be  ordered  where  they  can  be 
obtained  by  subpoena  duces  tecum.''^    But  where  the  in- 

4  People      V.      Newaygo      Circuit  7  Ashley  v.  Calhoun  Circuit  Judge, 

Judge,  41  Mich.   258.  138    Mich.    44;    Preston    Nat.   Bank 

8  Eddy  V.  Bay  Circuit  Judge,  114  v.  Wayne  Circuit  Judge,   137  Mich. 

Mich.    668;    Anti-Kalsomine    Co.    v.  152;   People  v.  Kent  Circuit  Judge, 

Kent  Circuit  Judge,  120  Mich.  250.  38    Mich.    351.      But    see    Smith    v. 

These    two    cases    are    explained    in  Wayne    Circuit    Judge,    158    Mich. 

Preston   Nat.   Bank    v.    Wayne   Cir-  588,  where  discovery  was  sought  to 

cuit  Judge,  137  Mich.  152.  enable  plaintiff  to  furnish  a  further 

6  People    V.    Kent    Circuit    Judge,  bill  of  particulars. 
38    Mich.    351;    Ashley    v.    Calhoun 
Circuit  Judge,  138  Mich.  44. 


§  6  Discovery  and  Inspection  of  Papers  513 

strument  sued  on  gives  the  right  of  inspection,  plaintiff 
is  entitled  to  an  order  for  snch  inspection  without  show- 
ing a  necessity  therefor  or  that  a  subpoena  duces  tecum 
would  not  compel  its  production  at  the  trial.®  And  it 
seems,  that  where  the  discovery  is  not  to  prepare  for  trial 
but  to  enable  a  party  to  plead,  the  petition  need  not  nega- 
tive the  ability  to  obtain  the  production  of  the  papers  by 
subpoena  duces  tecum.^ 

§  5.  Contents  of  petition. 

The  petition  for  such  discovery  must  state  the  facts 
and  circumstances  on  which  the  same  is  claimed,  and 
must  be  verified  by  affidavit,  stating  that  the  books, 
papers  and  documents  whereof  discovery  is  sought,  are 
not  in  the  possession  or  under  the  control  of  the  party 
applying  therefor,  and  that  the  party  making  such  affi- 
davit is  advised  by  his  counsel,  and  verily  believes,  that 
the  discovery  of  the  books,  papers  or  documents  men- 
tioned in  such  petition,  is  necessary  to  enable  him  to  de- 
clare, or  answer,  or  to  prepare  for  trial,  as  the  case  may 
be.i° 

§  6.  Rule  or  order. 

The  order  may  be  for  the  discovery  sought  or  to  show 
cause  why  the  prayer  of  the  petition  should  not  be 
granted."  The  rule  granting  the  discovery  is  reciuired 
to  specify  the  mode  in  which  the  same  is  to  be  made, 
which  may  be  either  by  requiring  the  party  to  deliver 
sworn  copies  of  matters  to  be  discovered,  or  by  requir- 
ing him  to  produce  and  deposit  the  same  with  the  clerk 
of  the  court  in  which  the  trial  is  to  be  had.  The  order 
must  also  specify  the  time  within  which  the  discovery 

8  London    Guarantee    &    Accident  10  Cir.  Ct.  Bule  49,  §  2. 

Co.    V.    Wayne    Circuit    Judge,    146  llJud.    Act,    ch.    1,    §19;    Comp. 

Mich.  477.  Laws  1915,  §  12024. 

9  Smith   V.   Wayne   Circuit   Judge, 
158  Mich.  588. 

1  Abljott— 33 


514  Discovery  and  Inspection  op  Papers  §  6 

should  be  made.  The  court,  or  presiding  judge  thereof, 
in  granting  such  order,  must  be  governed  by  the  prin- 
ciples and  practice  of  the  court  of  chancery  in  compelling 
discovery,  except  that  the  costs  of  such  proceedings  shall 
always  be  awarded  in  the  discretion  of  the  court.^'^ 

§  7.  Vacation  of  order. 

Every  such  order  may  be  vacated  by  the  court,  or  the 
judge  granting  the  same: 

1.  Upon  satisfactory  evidence  that  it  should  not  have 
been  granted. 

2.  Upon  the  discovery  sought  being  obtained. 

3.  Upon  the  party  requiring  to  make  discovery  deny- 
ing on  oath  the  possession  or  control  of  the  books,  papers 
or  documents  ordered  so  to  be  produced.^^ 

§  8.  Effect  of  order  as  stay. 

The  order  directing  the  discovery  of  books,  papers  or 
documents,  shall  operate  as  a  stay  of  all  other  proceed- 
ings in  the  cause,  until  such  order  shall  have  been  com- 
plied with  or  vacated;  and  the  party  obtaining  such  or- 
der, after  the  same  shall  have  been  complied  with  or 
vacated,  shall  have  the  like  time  to  declare,  plead  or 
answer,  to  which  he  was  entitled  at  the  time  of  making 
the  order.^* 

§  9.  Penalty  for  disobedience  of  order. 

In  case  of  the  party  refusing  or  neglecting  to  obey 
such  order  for  a  discovery,  within  such  time  as  the  court 
shall  deem  reasonable,  the  court  may  non-suit  him,  or 
may  strike  out  any  plea  or  notice  he  may  have  given,  or 
may  debar  him  from  any  particular  defense  in  relation 
to  which  such  discovery  w^as  sought;  and  the  power  of 

12Cir.  Ct.  Rule  49,  §§  3,  4.  14  Cir.   Ct.   Rule   49,   §6. 

ISJud.  Act,  ch.  1,  §20;  Comp. 
Laws  1915,  §1202!);  Cir.  Ct.  Rule 
49,  §5. 


Dismissal  for  Want  of  Prosecution  515 

the  court  to  compel  such  discovery  shall  be  confined  to 
the  remedies  herein  provided,  and  shall  not  extend  to 
authorize  any  other  proceedings  against  the  person  or 
property  of  the  party  so  refusing  or  neglecting.^^ 

§  10.  Effect  of  production  of  papers. 

The  books,  papers  and  documents,  or  sworn  copies 
thereof,  produced  under  any  order  made  in  pursuance  of 
the  preceding  rules,  shall  have  the  same  effect,  when  used 
by  the  party  requiring  them,  as  if  produced  upon  notice 
according  to  the  practice  of  the  court.^^ 

DISCRETION  OF  COURT 

Many  interlocutory  orders  rest  in  the  discretion  of  the 
court  (see  Continuance;  Pleading,  etc.).  So  the  award- 
ing of  costs  is  sometimes  discretionary  (see  Costs;  Su- 
preme Court;  Error,  Writ  of).  Certain  writs  are  also 
generally  held  to  be  discretionary  (see  Certiorari;  Error, 
Writ  of;  Mandamus;  Prohibition;  Quo  Warranto;  Habeas 
Corpus).  Discretionary  rulings  are  not  reviewable  on 
certiorari  (see  Certiorari)  or  writ  of  error  (see  Error, 
Writ  of)  unless  there  has  been  an  abuse  of  discretion. 
Mandamus  does  not  lie  to  review  or  coerce  acts  of  dis- 
cretion except  in  case  of  abuse  (see  Mandamus). 

DISMISSAL 

See  Replevin;  Garnishment;  Security  for  Costs;  Limitation  of  Ac- 
tions; Certiorari;  Error,  Writ  of;  Probate  Courts;  Justices  of  the 
Peiace;  Supreme  Court;  Mandamus.  Dismissal  where  plaintiff  refuses  to 
appear  as  a  witness  or  to  testify,  see  Jud.  Act,  ch.  17,  §  72 ;  Comp.  Laws 
1915,  §  12560. 

DISMISSAL  FOR  WANT  OF  PROSECUTION 

The  Judicature  Act  changes  the  former  procedure  to 
some  extent  in  regard  to  dismissals  for  failure  to  proso- 

16  Jud.    Act,    ch.    1,    §22;    Comp.  16  Jud.    Act,    ch.    1,    §23;    Comp. 

Laws  1915,    §12027;    Cir.   Ct.   Eule      Laws   1915,    §12028;    Cir.   Ct.  Rule 
49,  §7.  49,  §8. 


516  Dismissal  for  Want  op  Peosecution 

cute.  It  provides  that  all  cases  in  which  no  action  has 
been  taken  or  progress  made  for  more  than  a  year,  mi- 
less,  by  reason  of  the  business  of  the  court,  the  same  have 
not  been  reached,  shall  be  placed  upon  the  calendar  for 
the  next  ensuing  term  separate  and  apart  from  all  other 
causes  and  that,  on  the  first  day  of  the  term,  every  such 
cause  shall  be  dismissed  by  the  court  for  want  of  prose- 
cution, but  without  prejudice,  at  the  cost  of  the  party 
by  whom  it  was  brought  into  court,  unless  cause  to  the 
contrary  be  then  and  there  shown.^  If  further  time  for 
the  trial  of  the  issue  in  such  cause  be  allowed  by  the  court 
and  the  plaintiff  neglects  to  try  it  within  the  time  so  al- 
lowed, the  court  will  dismiss  the  action  in  like  manner,^ 
Under  the  former  statute,  it  was  held  that  a  motion  for 
a  judgment  thereunder  was  a  special  motion,  and,  like 
other  special  motions,  when  based  upon  some  fact  not 
appearing  on  the  face  of  the  proceedings,  must  be  sup- 
ported by  affidavit  or  some  other  competent  evidence  of 
such  fact.^  The  ground  of  these  applications  for  judg- 
ment is  that  the  plaintiff  has  unreasonably  delayed  in 
making  progress  with  the  cause,  and  the  purpose  is  either 
to  speed  the  cause  or  to  relieve  the  defendant  by  giving 
him  a  judgment  of  the  same  effect  as  one  upon  a  non- 
suit. But,  inasmuch  as  the  latter  precludes  in  that  case 
an  investigation  of  the  merits,  and  the  mainspring  of  the 
proceeding  is  a  supposed  equity  in  favor  of  the  defend- 
ant, the  remedy  has  always  been  subject  to  very  strict 
practice.  The  defendant  must  not  only  make  out  a  com- 
plete case  within  the  reason  on  which  the  application 
rests  and  in  accordance  with  the  actuating  principles, 

IJud.    Act,    ch.    18,    §2;     Comp.  Duell  v.  Oakland  Circuit  Judge,  206 

Laws    1915,   §12574;    Detroit   Lum-  Mich.  680. 

ber  Co.   v.   Oakland   Circuit   Judge,  2  Jud.    Act,    ch.    18,    §3;    Comp. 

207  Mich.  62.  Laws  1915,  §  12575. 

Setting      aside     dismissal     where  3  Storey   v.   Child,  2  Mich.   107. 

fault  was  that  of  county  clerk,  see 


Double  Costs  517 

but  he  must  proceed  in  critical  conformity  to  the  rules 
and  practice  of  the  court.* 

Where  defendant  does  not,  in  forai,  proceed  under  this 
statute,  he  cannot  have  an  action  dismissed,  where  it  is 
at  issue  and  ready  for  trial,  although  it  has  stood  untried 
for  twenty  years,  especially  since  he  could  himself  bring 
the  cause  on  for  trial.* 

DISORDERLY  CONDUCT 

See  Contempt;  Trial. 

DISQUALIFICATION 

See  Judges;  Circuit  Court  Commissioners;  Jury;  Sheriffs. 

DISSENTING  OPINIONS 

See  Supreme  Court  (ground  for  rehearing). 

DISSOLUTION 

See  Attachment. 

DISTRAINT 

See  Animals. 

DOCKET 

See  Trial;  Supreme  CotmT. 

DOCUMENTARY  EVIDENCE 

See  Evidence. 

DOCUMENTS 

See  Discovery,  etc.  ;  Replevin  ;  Bill  op  Exceptions. 

DOUBLE  COSTS 

See  Costs;  Error,  Writ  of. 

4  Hill   V.  Webber,   50   Mich.    142;  6  Sayre    v.    Detroit,    etc.,    R.    Co., 

Abe   Stein  Co.  v.  Wood,  151  Mich.       199  Mich.  414. 
657. 


518  Dower  §  1 

DOWER 

S  1.  Ejectment  to  recover. 

8  2.  Declaration. 

9  3.  Recovery  of  damageB. 

i  4.  ABsignment  of  dower. 

§  1.  Ejectment  to  recover. 

At  common  law,  it  was  competent  for  the  heir  to  as- 
sign the  widow's  dower  on  the  death  of  the  husband, 
but  if  it  was  not  assigned,  she  had  certain  remedies.  She 
had  no  right  of  entry  until  the  dower  was  assigned  to 
her,  and  she  could  not  maintain  a  possessory  action.  The 
legal  remedy  to  enforce  an  assignment  of  doAver  was  by 
writ  of  dower  unde  nihil  habet,  or  writ  of  right  of  dower, 
brought  against  the  tenant  of  the  freehold,  upon  which, 
if  she  obtained  judgment,  dower  was  assigned.  She 
might  then  proceed  to  recover  possession  by  ejectment,^ 
but  could  not  bring  ejectment  before  assignment.^ 

By  statutory  provision,  however,  ejectment  may  now 
be  brought  as  well  before  assignment  of  dower  as  after,^ 
and  it  has  been  ruled  in  this  state  that  dower  can  be  re- 
covered only  in  this  form  of  action.*  The  action  does  not 
necessarily  determine  the  right  of  possession  in  the  sense 
as  applied  to  the  suit  ordinarily  and  not  in  dower.  It 
determines  the  widow's  right  to  dower  in  the  whole 
premises,  but  she  obtains  no  judgment  of  ouster  as  in 
other  cases.  After  the  judgment  that  she  recover  dower 
in  the  premises,  the  circuit  court  must  proceed  to  ad- 
measure and  assign  the  dower  in  the  manner  prescribed 
by  law.* 

By  statute,  an  action  of  ejectment  may  be  brought  by 

1  May  V.  Rumney,  1  Mich.  1.  Bender,    61    Mich.    408;    Moody    v. 

SGalbraith  v.  Fleming,   60  Mich.  Seaman,  46  Mich.  74. 

408.  4Galbraith   v.   Fleming,   60   Mich. 

3Jud.    Act,    ch.    29,    §52;    Comp.  408;    Proctor   v.   Bigelow,   38   Mich. 

Laws     1915,     §13219;      Snyder     v.  285. 

Snyder,   6   Mich.   473;    Galbraith   v.  6  Rca  v.  Rea,  63  Mich.  257;   Gal- 
Fleming,   60   Mich.   408;    Burrall   v.  braith  v.  Fleming,  60  Mich.  408. 


§  2  Dower  519 

any  widow  entitled  to  dower,  or  by  a  woman  so  entitled, 
and  her  husband,  after  the  expiration  of  six  months  from 
the  time  her  right  accrued,  to  recover  her  dower  of  any 
lands,  tenements  or  hereditaments.®  A  vendee  of  the 
widow  cannot  sue  for  unassigned  dower.''  In  ejectment 
for  dower,  a  mortgage  discharged  of  record  cannot  be 
restored  to  defeat  her  claim  although  it  is  inequitable 
that  she  should  recover;  restoration  being  proper  only  on 
the  chancery  side  of  the  court. ^ 

§2.  Declaration. 

If  the  action  be  brought  for  the  recovery  of  dower,  the 
declaration  shall  state  that  the  plaintiff  was  possessed 
of  the  one  undivided  third  part  of  the  premises,  as  her 
reasonable  dower  as  widow  of  her  husband,  naming  him.* 
The  land  must  be  described  so  that  possession  may  be 
delivered  by  the  sheriff  without  any  reference  to  any 
description  dehors  the  writ,  and  any  defect  in  regard 
thereto  cannot  be  cured  by  reference  to  any  deeds  or 
records. ^°  The  same  certainty  in  describing  the  premises 
is  required  as  in  other  actions  of  ejectment.  A  descrip- 
tion specifying  certain  subdivisions  of  a  section  of  land, 
excepting  so  much  thereof  as  is  contained  in  the  record 
of  the  plat  of  a  certain  village,  recorded  in  the  record  of 
deeds  of  the  county,  was  held  sufficiently  certain  in  the 
declaration  and  verdict." 

Form  of  Count  In  Ejectment  for  Dower 

The  plaintiff  says: 

1.  That  the  said  plaintiff,  heretofore,  to  wit,  on   ,  was  possessed 

of  one  undivided  third  part  of  certain  real  estate  and  premises,  with  the 
appurtenances,  situate  in  the   of   ,  in  the  county  of    , 

6Jud.    Act,    ch.    29,    §2;    Comp.  9  Jud.    Act,    ch.    29,    §10;    Comp. 

Laws  1915,  §  13169.  Laws  1915,  §  13177. 

7Galbraith  v.   Fleming,  60   Mich.  10  King  v.  Merritt,  67  Mich.  194. 

408.  11  Lockwood    v.    Drake,    1    Mich. 

8  Putney    v.    Vinton,    145    Mich.  14. 
219. 


520 


Dower 


§2 


and  state  of  Michigan,  known  and  described  as  follows,  that  is  to  say: 
(Here  describe  the  premises  claimed  with  such  convenient  certainty,  by 
setting  forth  the  section,  or  part  of  a  section,  township  and  range,  or 
the  number  of  the  lot,  or  otherwise,  that  from  such  description,  possession 
of  the  premises  claimed  may  be  delivered).  2.  That  the  said  plaintiff 
claims  the  same  as  her  reasonable  dower,  as  widow  of  J.  B.,  deceased,  late 
husband  of  the  said  plaintiff.  3.  That,  the  said  plaintiff  being  so  pos- 
sessed thereof,  the  said  defendant  afterwards,  to  wit,  on   ,  entered 

into  the  said  undivided  third  part  of  the  said  premises.  4.  That  the  said 
defendant  unlawfully  withholds  from  the  said  plaintiff  the  possession 
thereof. 


§3. 


Recovery  of  damages. 


If  the  action  be  brought  for  the  recovery  of  dower,  the 
plaintiff  can  recover  as  damages  a  one-third  part  of  the 
annual  value  of  the  mesne  profits  of  the  lands  in  which 
she  recovers  her  dower,  to  be  estimated,  when  the  suit 
is  against  the  heirs  of  her  husband,  from  the  time  of  his 
death,  and,  when  the  suit  is  against  other  persons,  from 
the  time  of  her  demanding  ^^  her  dower  of  such  persons ; 
but  such  damages  must  not  be  estimated  for  the  use  of 
any  permanent  improvements  made  after  the  death  of 
her  husband  by  his  heirs  or  by  any  other  person  claim- 
ing title  to  the  lands. ^' 

When  a  widow  recovers  her  dower  in  any  lands  alien- 
ated by  the  heir  of  her  husband,  she  will  be  entitled  to 
recover  of  such  heir,  in  an  action  on  the  case,  her  dam- 
ages for  withholding  such  dower  from  the  time  of  the 
death  of  her  husband  to  the  time  of  the  alienation  by  the 
heir,  not  exceeding  six  years  in  the  whole;  and  the 
amount  which  she  is  entitled  to  recover  from  the  heir 
will  be  deducted  from  the  amount  which  she  would  other- 
wise be  entitled  to  recover  from  his  grantee,  and  any 


18  Bringing   of   action   to   recover      lackey  v.  Killackey,  166  Mich.  311. 


dower  is  a  suflScient  demand.  Kil 
lackey  v.  Killackey,  166  Mich.  311 
ISJud.  Act,  ch.  29,  §36;  Comp 
Laws  1915,  §13203;  How.  Stat 
(2nd  ed.)  10934,  10935;  Comp 
Laws    1915,    §§11674,    11675;    Kil 


The  right  of  a  widow  to  a  pro- 
portionate share  of  the  mesne  prof- 
its is  a  legal  incident  of  the  right 
of  dower.  Miller  v.  Stepper,  32 
Mich.  194.  See  also  Bemis  v.  Con- 
ley,  49  Mich.  392. 


Duces  Tecum  521 

amount  recovered  as  damages  from  such  grantee  will  be 
deducted  from  the  sum  she  would  othei'wise  be  entitled 
to  recover  from  the  heir." 

§4.  Assignment  of  dower. 

The  statute  provides  that  if  the  plaintiff  recover,  and 
her  dower  shall  not  have  been  admeasured  to  her  before 
the  commencement  of  the  action,  instead  of  a  writ  of  pos- 
session being  issued,  such  plaintiff  shall  proceed  to  have 
her  dower  assigned  to  her  in  the  manner  following:  ^* 

1.  The  court,  upon  the  filing  of  the  record  of  judgment 
(that  is,  the  entry  of  the  judgment  of  record),  on  the  mo- 
tion of  the  plaintiff,  is  required  to  appoint  three  discreet 
and  disinterested  freeholders  commissioners  for  the  pur- 
pose of  making  admeasurement  of  the  dower  of  the  plain- 
tiff out  of  the  lands  described  in  the  record;  and  such 
commissioners  are  to  proceed  in  like  manner,  possess  the 
like  powers,  and  be  subject  to  the  like  obligations,  as 
commissioners  appointed  by  the  judge  of  probate  to  set 
off  dower; 

2.  The  commissioners  are  required  to  make  a  report  of 
their  doings  to  the  court,  in  writing,  as  soon  as  may  be 
after  their  appointment,  which  report  is  to  be  confirmed 
by  the  court,  unless  good  cause  to  the  contrary  be  shown, 
and  entered  at  large  in  the  minutes  of  the  court ; 

3.  Upon  the  confirmation  of  the  report,  a  writ  of  pos- 
session is  to  be  issued  to  the  sheriff  of  the  proper  county, 
describing  the  premises  assigned  for  the  dower,  and  com- 
manding such  sheriff  to  put  the  plaintiff  in  possession 
thereof. 

DRY  GOODS 

See  Beplevin   (description  of). 

DUCES  TECUM 

See  Subpoenas. 

14  How.    Stat.    (2nd    ed.)    10936;  IB  Jud.  Act,  ch.  29,   §52;    Comp. 

Comp.  Laws  1915,  §  11676.  Laws  1915,  §  13219. 


522  Duplicity 

DUPLICITY 

See  Pleading. 

DURESS 

Duress  is  an  affirmative  defense,  notice  of  which  must 
be  given  under  a  plea  of  the  general  issue  as  will  be  no- 
ticed in  the  article  on  Pleading.  The  form  of  notice  of 
duress  as  a  defense  as  allowed  by  the  state  bar  associa- 
tion's forms  is  as  follows:  ''The  defendant  will  show 
that  he  was  induced  to  execute  the  said  contract  by  duress 
on  the  part  of  the  plaintiff,  committed  as  follows:  (Set 
out  specifically  the  acts  constituting  the  duress)." 

DWELLING  HOUSES 

See  Executions  (forcible  entry). 

EARNINGS 

See  Supplementary  Proceedings. 

EDUCATION 

See  Schools. 

EJECTMENT 

g    1.  Historical. 

S    2.  statutory  provisions. 

S    3.  When  ejectment  lies  by  statute. 

8    4.  Ejectment  by  mortgagee. 

8    5.  Nature  of  statutory  action. 

S    6.  Remedy  as  exclusive. 

S    7.  Who  may  sue. 

§    8.  Defenses. 

S    9.  Who  may  be  sued. 

S  10.  Election  between  defendants. 

§  11.  Order  for  survey. 

§  12.  Commencement  of  action  and  service  of  process. 

§  13.  Declaration. 

§  14.  Amendment. 

8  15.  Joinder  of  counts. 

§  16.  Plea. 

§  17.  Notice  of  lis  pendens. 


§  1  Ejectment  523 

§  18.  Abatement  of  action, 
§  19.  Verdict. 
§  20.  Judgment. 

§  21.  Judgment  by  default. 

§  22.  Conclusiveness  and  vacation  of  judgment. 

§  23.  Filing  and  recording. 

§  24.  Kecovery  of  mesne  profits. 

§  25.  Suggestion  of  claim. 

§  26.  Proceedings  by  defendants. 

§  27.  Trial  of  issue. 

§  28.  Set-off. 

§  29.  Assessment  of  damages. 

§  30.  Proceedings  in  case  of  death  of  defendant. 

§  31.  Eecovery  of  compensation  for  buildings  and  improvements. 

§  32.  Proceedings  to  determine  amount  of  compensation. 

§  33.  Election  by  plaintiff  to  abandon  premises. 

§  34.  Proceedings  if  plaintiff   does  not  elect  to  abandon  premises. 

§  35.  Execution  for  plaintiff. 
§  36.  Execution  for  defendant. 
§37.  New  trials. 

Cross-references:  Dower  (ejectment  for);  Venue  (place  of  trial); 
Se(Turity  for  Costs;  Infants  (guardian  for  infant  defendants);  Limi- 
tation OF  Actions;  Executions  (ejectment  by  purchaser  at  execution 
sale). 

§  1.  Historical. 

A  writ  of  ejectione  firmae  or  action  of  trespass  in  eject- 
ment, says  Blackstone,  lieth  where  lands  or  tenements 
are  let  for  a  term  of  years,  and  afterwards  the  lessor,  re- 
versioner, remainderman  or  any  stranger  doth  eject  or 
oust  the  lessee  of  his  term.  By  this  writ,  the  plaintiff 
recovered  back  his  term,  or  the  remainder  of  it,  with  dam- 
ages.^ It  was,  therefore,  a  mixed  action, — that  is,  one 
brought  for  the  specific  recovery  of  lands,  tenements  or 
hereditaments  and  for  damages  for  injury  sustained  in 
respect  of  such  property.*^ 

The  writ  of  ejectione  firmae  did  not  originally  include 
the  specific  restoration  of  the  term,  but  was  purely  for 
the  recovery  of  damages  for  the  trespass  committed  in 

13  Cooley's  Bl.  Comm.  199;  Cyc.  2  Steph.  PI.  39;    1  Chit.  PI.  210; 

Law    Diet.    tit.    "Ejectment."  3  Cooley's  Bl.  Comm.  200, 


524  Ejectment  §  1 

ejecting  the  lessee  from  his  farm.  But  afterwards,  when 
the  courts  of  equity  began  to  oblige  the  ejector  to  make 
a  specific  restitution  of  the  land  to  the  party  immediate- 
ly injured,  the  courts  of  law  also  adopted  the  same 
method  of  doing  complete  justice.  This  method  seems 
to  have  been  settled  as  early  as  the  reign  of  Edward  IV, 
and,  under  Henry  VII,  was  first  applied  to  the  trying  of 
the  title  to  the  land. 

In  order  to  convert  it  into  a  method  of  trying  titles  to 
the  freehold,  it  was  first  necessary  that  the  claimant  take 
possession  of  the  land  to  empower  him  to  constitute  some 
one  a  lessee  for  years,  who  should  be  capable  of  receiv- 
ing the  injury  of  being  ejected  from  his  term.  This  tak- 
ing possession  by  one  who  had  the  right  of  entry  upon 
the  land  so  wrongfully  withheld  was  by  a  formal  entry 
on  the  premises,  and,  when  he  was  so  in  possession,  he 
then  and  there  sealed  and  delivered  a  lease  for  years  to 
some  third  person  or  lessee,  and,  having  thus  given  him 
entry,  left  him  in  possession  of  the  premises.  The  lessee 
stayed  upon  the  land  until  the  prior  tenant,  or  he  who 
had  the  previous  possession,  entered  thereon  afresh  and 
ousted  him,  or  until  some  other  person,  called  the  "cas- 
ual ejector,"  either  by  accident  or  by  agreement  came 
upon  the  land  and  ejected  him.  For  this  ejectment,  the 
""•see  was  entitled  to  his  action  of  ejectment  against  him 
that  ousted  him  to  recover  back  his  term  and  damages. 
If  it  were  brought  against  a  casual  ejector,  it  was  the 
duty  of  the  plaintiff  to  give  notice  to  the  tenant  in  pos- 
session, if  any,  so  as  to  allow  the  latter  an  opportunity 
to  defend. 

In  order,  therefore,  to  maintain  the  action,  the  plain- 
tiff, in  case  of  any  defense,  had  to  make  out  four  points 
before  the  court,  namely,  title,  lease,  entry  and  ouster, 
that  is  to  say,  title  in  his  lessor,  which  brought  the  mat- 
ter of  right  before  the  court,  lease  from  the  person  seized 
by  virtue  of  that  title  to  the  plaintiff,  entry  by  the  lessee 


§  2  Ejectment  525 

upon  the  premises  in  consequence  of  the  lease,  and  ouster 
of  the  lessee  by  the  defendant. 

But,  as  much  trouble  and  formality  were  found  to  at- 
tend the  actual  making  of  the  lease,  entrj^  and  ouster,  a 
new  and  more  easy  method  was  invented,  depending  en- 
tirely upon  a  string  of  legal  fictions.  By  this  method,  no 
actual  lease  was  made  and  there  were  no  actual  entry 
by  the  plaintiff  and  no  actual  ouster  by  the  defendant, 
but  they  were  all  presumed  and  in  fact  stated  to  have 
occurred.  A  lease  for  a  term  of  years  was  stated  to  have 
been  made  by  him  who  claimed  the  title,  to  the  plaintiff 
who  brought  the  action ;  it  was  also  stated  that  the  plain- 
tiff entered  and  that  the  defendant,  who  was  called  the 
casual  ejector,  ousted  him.  The  tenant  in  possession 
had  to  be  notified  of  the  action,  so  that  he  might  have  an 
opportunity,  if  he  saw  fit,  to  apply  to  be  made  a  defend- 
ant. If  he  did  not  apply,  he  was  supposed  to  have  no 
right  at  all  to  the  possession  of  the  premises.  If  he  did 
apply,  he  was  allowed  to  be  made  a  defendant  only  upon 
the  condition  that  he  consent  to  a  rule  to  confess,  at  the 
trial  of  the  cause,  three  of  the  four  requisites  for  the 
maintenance  of  the  plaintiff's  action,  namely,  the  lease, 
entry  and  ouster,  leaving  the  trial  to  stand  upon  the 
merits  of  the  title  only.' 

§  2.  Statutory  provisions. 

The  statutes  relating  to  ejectment  to  recover  real  prop- 
erty are  found  in  chapter  29  of  the  Judicature  Act  and 
are  very  comprehensive.  Many  of  the  provisions  in 
chapter  33  of  the  Judicature  Act  entitled  ''General  pro- 
visions concerning  actions  relating  to  real  estate"  are 
applicable  to  ejectment;  and  some  of  the  provisions  in 
that  chapter  seem  to  be  applicable  to  no  other  action. 
The  statute  applies  to  trial  by  the  court  without  a  jury  as 

3  See  3  Cooley's  Bl.  Comm.  199- 
203. 


526  Ejectment  §  2 

well  as  to  trial  by  a  jury  although  in  many  places  the  word 
"verdict"  is  used  without  mentioning  ''findings,"  in 
which  case  the  statute  must  generally  be  construed  as  if 
it  also  expressly  referred  to  "finding."  Ejectment 
against  private  business  corporations  whose  term  of  ex- 
istence has  expired  is  expressly  provided  for  by  statute.* 
The  practice  in  actions  relating  to  real  estate  is  re- 
quired to  be  the  same  in  all  respects  as  in  personal  actions 
except  where  otherwise  specially  provided  by  law;  and 
proceedings  may  be  stayed  in  the  like  cases,  and  all  the 
provisions  of  law  respecting  pleadings,  process,  records 
and  judgments,  in  personal  actions,  shall,  so  far  as  the 
nature  of  such  actions  will  admit,  apply  to  actions  relat- 
ing to  real  estate.* 

§  3.  When  ejectment  lies  by  statute. 

The  common  law  action  of  ejectment  is  retained  by  the 
statute,  and  it  is  expressly  provided  that  the  action  may 
be  brought  in  the  cases  and  in  the  manner  theretofore 
accustomed,  subject  to  the  provisions  therein  contained.* 
It  may  also  be  brought  (1)  in  the  same  cases  in  which 
a  writ  of  right  might  previously  have  been  brought  to 
recover  lands,  tenements,  or  hereditaments,  and  by  any 
person  claiming  an  estate  therein,  in  fee  or  for  life,  either 
as  heir,  devisee,  or  purchaser;  and  (2)  by  any  widow  en- 
titled to  dower,  or  by  a  woman  so  entitled  and  her  hus- 
band, after  the  expiration  of  six  months  from  the  time 
her  right  accrued,  to  recover  her  dower  of  any  lands, 
tenements  or  hereditaments.''' 

Whenever  a  right  of  entry  exists,  and  the  interest  is 
tangible,  so  that  possession  can  be  delivered,  an  action 
of  ejectment  will  lie.     But  it  will  not  lie  for  anything 

4Jii(l.    Act,    ch.    29,     §§58,    59;  6  Jud.    Act,    ch.    29,    §1;     Comp. 

Comp.   Laws   1915,    §§  13225,   13226.  Laws  1915,  §  13168. 

6  Jud.    Act,   ch.    33,    §16;    Comp.  7  Jud.    Act,    ch.    29,    §2;    Comp. 

Laws  1915,   §  13373.  Laws  1915,  §  13169. 


§  4  Ejectment  527 

whereon  an  entry  cannot  be  made,  or  of  which  the  sheriff 
cannot  deliver  possession,  and  is  therefore  only  main- 
tainable for  corporeal  hereditaments.®  Only  legal  titles 
can  be  considered,^  and  the  court  cannot  correct  mis- 
takes in  plaintiff's  deed.^°  Ejectment  is  the  proper  rem- 
edy to  try  bomidary  lines,  and  they  cannot  be  tried  in  a 
proceeding  before  a  circuit  court  commissioner.^^ 

§  4.  Ejectment  by  mortgagee. 

Under  the  statute,  no  action  of  ejectment  can  now  be 
maintained  by  a  mortgagee  or  his  assigns  or  representa- 
tives for  the  recovery  of  the  mortgaged  premises,  until 
the  title  thereto  has  become  absolute  upon  a  foreclosure 
of  the  mortgage. ^^  A  similar  statute  has  been  in  effect 
in  this  state  since  1843;  prior  to  which,  the  mortgage 
vested  the  legal  title  to  the  land  in  the  mortgagee,  who 
might,  therefore,  at  any  time  after  a  default  in  the  pay- 
ment of  the  mortgage  money  or  any  part  thereof,  if  not 
before,  where  the  mortgage  did  not  provide  for  the  mort- 
gagor's retaining  possession  until  that  time,  put  the 
mortgagor  out  of  possession  by  ejectment."  But,  in  the 
case  of  mortgages  executed  since  that  statute  took  effect, 
they  are  deemed  not  to  convey  the  legal  title,  but  are 
only  securities  for  the  payment  of  the  debt.^* 

8  Right  of  lessee  to  enter.  Har-  13  Stevens  v.  Brown,  Walk.  Ch.  41. 
low  V.  Lake  Superior  Iron  Co.,  36  14  Dougherty  v.  Randall,  3  Mich. 
Mich.  105.  Ejectment  does  not  lie  581;  Baker  v.  Pierson,  5  Mich.  456; 
for  a  right  of  way  or  other  ease-  Caruthers  v.  Humphrey,  12  Mich, 
ment.  Taylor  v.  Gladwin,  40  Mich.  270;  Newton  v.  Sly,  15  Mich.  391; 
232.  Hogsett  v.  Ellis,  17  Mich.  351;  New- 

9  Thatcher  v.  Wardens,  etc.,  of  ton  v.  McKay,  30  Mich.  380 ;  Wager 
St.  Andrew's  Church  of  Ann  Arbor,  v.  Stone,  36  Mich.  364;  Lee  v. 
37  Mich.  264.  Clary,    38    Mich.    223;    Hazeltine    v. 

10  Hamilton  v.  Fenton,  119  Mich.  Granger,  44  Mich.  503;  Morse  v. 
580.  Byam,   55  Mich.   594. 

11  Drake  v.  Happ,  92  Mich.  580. 
12Jud.   Act,   ch.   29,    §54;    Comp. 

Laws  1915,  §  13221. 


528  Ejectment  §  5 

§  5.  Nature  of  statutory  action. 

The  statute  has  substantially  superseded  the  old  action 
of  ejectment  with  its  fictitious  and  wearisome  forms,  and 
has  given,  under  the  same  name,  a  much  broader  and 
more  potent  remedy.  As  marked  out  by  the  legislature, 
it  has  the  effectiveness  of  a  real  action.  It  is  a  proceed- 
ing to  try  titles  as  well  as  to  determine  who  has  the  right 
of  possession.  It  is  made  applicable  to  cases  where  for- 
merly a  writ  of  right  was  the  appointed  remedy,  and  it 
is  the  only  action  for  the  determination  of  title  to  land.^** 
But  it  is  a  possessory  action,  and  does  not  necessarily 
involve  the  title.  The  party  having  right  to  present  pos- 
session is  always  entitled  to  recover,  and  it  is  quite  un- 
necessary for  him  to  show  more,  unless  some  question  of 
damages  or  the  value  of  improvements  made  by  the  de- 
fendant shall  require. ^^  But  it  is  not  purely  a  possessory 
action,  and  it  may  involve  the  title. ^'  It  will  not  lie,  in 
this  state,  for  anything  that  is  not  tangible  or  capable 
of  being  delivered  to  the  plaintiff  by  the  sheriff  under  the 
writ  of  possession. ^^  Thus,  it  does  not  lie  to  recover  an 
easement,  such  as  the  use  of  a  street  or  alley.^^ 

§  6.  Remedy  as  exclusive. 

It  is  the  only  proper  remedy  where  the  holder  of  a 
legal  title  seeks  to  enforce  it  against  one  in  possession 

15  See    §  6,  post.  133 ;  Bertram  v.  Cook,  44  Mich.  396. 
All  writs  of  right,  writs  of  dower,  17  Kinney    v.    Harrett,    46    Mich. 

writs  of  entry,  and  writs  of  assize,  87. 

all  fines  and  common  recoveries,  and  18  Harrington  v.  City  of  Port 
all  other  real  actions  known  to  the  Huron,  86  Mich.  46. 
common  law,  not  enumerated  and  19  City  of  Grand  Rapids  v.  Whit- 
retained  in  the  title  referring  to  tlesey,  33  Mich.  109;  Bay  County 
actions  relating  to  real  property,  v.  Bradley,  39  Mich.  163 ;  Taylor 
and  all  writs  and  other  process  here-  v.  Gladwin,  40  Mich.  232;  1  Chit, 
tofore  used  in  real  actions,  not  PI.  210;  3  Cooley's  Bl.  Comm.  206; 
specially  retained  in  the  statute,  are  Northern  Turnpike  Road  Co.  v. 
abolished.  Jud.  Act,  eh.  33,  §17;  Smith,  15  Barb.  (N.  Y.)  355;  Brady 
Comp.  Laws  1915,   §  13374.  v.  Hennion,  8  Bosw.   (N.  Y.)   528. 

16  Covert    v.    Morrison,    49    Mich. 


§  7  Ejectment  529 

claiming  under  an  invalid  title.^°  Ejectment  and  the 
statutory  proceeding  to  recover  possession  are  the  only- 
possessory  remedies.^^  Ordinarily  the  remedy  by  eject- 
ment to  recover  the  possession  of  real  property  is  exclu- 
sive and  resort  cannot  be  had  to  a  suit  in  equity.^'*  In 
some  instances,  however,  the  remedy  by  ejectment  is  in- 
adequate.^* 

§  7.  Who  may  sue. 

No  person  can  recover  in  ejectment  unless  he  has,  at 
the  time  of  commencing  the  action,  a  valid,  subsisting 
interest  in  the  premises  claimed  and  a  right  to  recover 
the  possession  thereof,  or  of  some  share,  interest  or  por- 
tion thereof,  to  be  proved  and  established  at  the  trial.^* 

The  plaintiff  must  depend  for  success  upon  the  suf- 
ficiency of  his  own  title  and  not  upon  the  insufficiency 
of  the  defendant 's.'^^  And  it  is  generally  well  settled  in 
those  states  and  countries  where  the  distinction  between 
legal  and  equitable  jurisdiction  and  remedies  is  kept  up 
that,  in  an  action  of  ejectment  at  law,  the  legal  title,  so 
far  as  relates  to  the  right  of  possession,  must  prevail, 
and  that  the  plaintiff  cannot  recover  upon,  nor  a  defend- 
ant set  up  in  defense,  a  merely  equitable  title  against  the 

20  Beach   v.   Rice,    186   Mich,   95  j  406;     La    Coss    v.    Wadsworth,    56 
Bang  V.  Carpenter,  37  Mich.  363.  Mich.   421    (where  judgment  would 

21  Wilkinson  V.  Williams,  51  Mich.  still      leave       complainant's       title 
155.  clouded)  ;  Campbell  v.  Kent  Circuit 

22  Longcor   v.   Turner,   191    Mich.  Judge,    111    Mich.    575;     Shaw    v. 


240;  Beach  v.  Rice,  186  Mich.  95 
Hoffman  v.  Beard,  22  Mich.  59 
Dart  V.  Barbour,  32  Mich.  267 
Cromwell  v.  Hughes,  144  Mich.  3 
Dolph  V.  Norton,  158  Mich.  417 
Blackwood  v.  Van  VIeet,  11  Mich 
252.     But   see,   as   to   putting  pur 


Chambers,  48  Mich.  355;  Wilmarth 
V.  Woodcock,  66  Mich.  331. 

24Jud.  Act,  ch.  29,  §3;  Comp. 
Laws  1915,  §  13170. 

25Kushler  v.  Weber,  182  Mich. 
224;  Bird  v.  Stimson,  197  Mich. 
582;    Van    Vleet   v.    Blackwood,   39 


chaser    of    tax    homestead    lands    in  Mich.    728;     West    Michigan    Park 

possession,  Chiodo  v.  Williams,  180  Ass'n    v.    Pere    Marquette    R.    Co., 

Mich.   367.  172    Mich.    179;    Webber    v.    Pere 

28  Wilson    v.    Sauble,    181    Mich.  Marquette  Boom  Co.,  62  Mich.  626. 

1  Abbott— 34 


530  Ejectment  §  7 

legal  title. '^^  If  the  plaintiff  has  been  in  possession  of 
the  land  claiming  title,  he  may  stop  with  that  showing  as 
a  prima  facie  case,  and  he  is  entitled  to  judgment  upon 
it  unless  the  defendant  shows  either  a  right  in  himself  or 
an  outstanding  title  in  some  third  party  upon  which  he 
is  at  liberty  to  rely.^' 

It  is  not  necessary  for  the  plaintiff  to  prove  an  actual 
entiy  under  title  or  the  actual  receipt  of  any  profits  of 
the  premises  demanded,  but  it  is  sufficient  for  him  to 
show  a  right  to  the  possession  of  the  premises  at  the 
time  of  the  commencement  of  the  suit,  as  heir,  devisee, 
purchaser  or  otherwise.^®  Nor  need  he  prove  on  the  trial 
a  lease,  entry  and  ouster  or  either  of  them,  except  where 
the  action  is  brought  by  one  or  more  tenants  in  common 
or  joint  tenants  against  their  co-tenants;  in  which  case, 
the  plaintiff,  in  addition  to  the  evidence  which  he  may 
be  bound  to  give,  must  prove  that  the  defendant  actually 
ousted  him  or  did  some  other  act  amounting  to  a  total 
denial  of  his  right  as  such  co-tenant.^' 

If  plaintiff  relies  on  prior  possession,  it  must  have 
been  continuous  up  to  the  time  of  the  ouster  or  at  least 
not  abandoned.^"  Title  by  adverse  possession  is  suffi- 
cient,^^ and  a  grant  of  land  in  the  adverse  possession  of 


26Eausch  V.  Briefer,  138  Mich 
284;  Porter  v.  Osmun,  135  Mich 
361;  Eyder  v.  Flanders,  30  Mich 
336,  344;  Geiges  v.  Greiner,  68  Mich 
153;  Moran  v.  Moran,  106  Mich,  8 

27  Covert  V.  Morrison,  49  Mich 
133. 

28Jud.  Act,  ch.  29,  §18;  Comp 
Laws  1915,  §13185;  Moody  v.  Ma 
comber,  159  Mich.  657;  Crane  v 
Beeder,  21  Mich.  24;  Covert  v.  Mor 


One  may  recover  on  showing  a 
mere  right  to  possession,  where  such 
a  right  is  evidence  as  against  the 
defendant  that  the  plaintiff  has  a 
legal  estate  of  some  description. 
Kinney   v.    Harrett,   46  Mich.   87. 

Tenant  as  purchaser  and  action 
against  landlord,  see  Smith  v.  Cole, 
166  Mich.   165. 

29Jud.  Act,  ch.  29,  §§19,  20; 
Comp.   Laws   1915,   §§  13186,   13187. 


rison,  49   Mich.   133.  SOEnsley  v.  Coolbaugh,  160  Mich. 

But     right     of     possession     must  299. 

exist   at  the   commencement   of   the  31  Dahlen    v.    Abbott,    153    Mich, 

action.      Van    Vleet    v.    Blackwood,  465;  Nowlen  v.  Hall,  128  Mioh.  274. 
39  Mich.  728. 


§  8  Ejectment  531 

another  will  support  ejectment.^^  The  defense  that  plain- 
tiff procured  his  title  by  fraud  cannot  be  set  up.^'  A  per- 
son in  possession  cannot  recover,  and  this  rule  applies 
where  plaintiff  is  in  possession  of  a  portion  of  the  prem- 
ises.^* Trustees  having  a  legal  title  may  sue,^^  as  may 
an  administrator  or  executor.^^  On  the  other  hand,  a 
guardian  cannot  maintain  ejectment  for  the  lands  of  his 
wards,"  and  a  city  has  not  such  an  interest  in  its  streets 
as  will  authorize  it  to  maintain  ejectment.^'  So  the  ven- 
dor of  land  by  an  executory  land  contract  giving  the 
vendee  the  right  to  immediate  possession,  but  who  still 
retains  the  legal  title  cannot  maintain  ejectment  against 
one  who  has  ousted  the  vendee.^^  Where  dower  has  not 
been  legally  assigned,  the  person  entitled  to  the  fee  may 
bring  ejectment  against  one  wrongfully  in  possession." 

§  8.  Defenses. 

The  general  rule  is  that  the  plaintiff  must  recover  upon 
the  strength  of  his  own  title  and  not  upon  the  weakness 
of  the  defendant's.*^  And  it  follows  that  a  defendant 
may,  in  general,  defeat  such  recovery  by  showing  the 
weakness  of  the  plaintiff's  claim;  and  he  may  do  this  by 
proving  that  the  title  is  in  himself,  and  hence  not  in  the 
plaintiff,  or  by  establishing  the  existence  of  a  paramount 

82  Crane   v.   Reeder,   21    Mich.   24      comber,  159  Mich.  657. 

(state) ;  Campau  V.  Dubois,  39  Mich.  87  Kinney    v.    Harrett,    46    Mich. 

274.  87. 

83  Loranger     v.     Carpenter,     148  88  City  of  Grand  Rapids  v.  Whit- 
Mich.  549.  tlesey,  33  Mich.  109.     See  also  Bay 

84  Rea  V.  Rea,  63  Mich.  257.  County  v.  Bradley,  39  Mich.  163. 
But   it   is  immaterial   that  plain-  39  Knite  v.  Lage,  152  Mich.  638. 

tiff    resumed    possession    after    the  Compare    Olin    v.    Henderson,    120 

commencement  of  the  action.    Smith  Mich.  149. 

V.  Cole,  166  Mich.  165.  40  King  v.  Merritt,  67  Mich.  194. 

86  Board     of     Health     of     Buena  41  Webber      v.      Pere     Marquette 

Vista  Tp.  V.  City  of  East  Saginaw,  Boom  Co.,  62  Mich.  627;  Van  Vleet 

45  Mich.  257.  v.  Blackwood,  39  Mich.  728;  Crooks 

86  Kline    v.     Moulton,     11     Mich.  v.   Whitford,  47   Mich.   283;    Stock- 

370;  Barlage  v.  Detroit,  G.  H.  &  M.  ton  v.  Williams,  1  Doug.  556;  Brady 

Ry.,   54   Mich.   564;    Moody   v.   Ma-  v.  Hcnnion,  8  Bosw.  (N.  Y.)  528. 


532  Ejectment  §  8 

title  outstanding  in  a  third  person,'*^  But  to  have  this 
effect,  such  outstanding  title  must  be  paramount  to  the 
plaintiff's, — a  present,  subsisting  and  operative  legal 
title  on  which  the  owner  could  sue  and  recover.**  In 
apparent  modification  of  these  principles,  the  supreme 
court  of  Michigan  has  held  that  where  the  facts  of  the 
plaintiff's  case  show  a  prima  facie  title  in  fee  as  against 
one  showing  no  better  title  in  himself,  the  defendant  can- 
not defeat  the  plaintiff's  right  of  recovery  by  showing 
an  ancient  conveyance  to  a  third  party  under  which  the 
defendant  claims  no  rights.  The  modification,  however, 
is  only  apparent,  for  it  is  presumed,  as  a  matter  of  fact, 
subject  to  contradiction  or  impeachment,  that  the  plain- 
tiff's title  is  not  one  which  is  separate  and  in  conflict 
with  the  ancient  title,  but  is  a  mere  continuation  of  it.'** 

The  common  law  rule,  which  excludes  all  defenses  in 
ejectment  which  are  not  legal,  has  been  abrogated  in 
some  American  jurisdictions,  but  the  courts  of  the  United 
States  and  of  this  state  still  adhere  to  it." 

Defendant  may  defeat  the  action  by  showing  title  by 
adverse  possession,*®  or  a  tax  deed,*"^  or  a  title  acquired 
pendente  lite,"  or  paramount  homestead  rights."*  Where 

42  Lee  V.  Clary,  38  Mich.  223;  Mora,  98  U.  S.  425;  Ferin  v.  Holme, 
Manistee  Mfg.  Co.  v.  Cogswell,  103  21  How.  (U,  S.)  481;  Greenleaf 
Mich.  602;  Bennett  v.  Horr,  47  v.  Birth,  6  Pet.  (U.  S.)  302. 
Mich.  221;  Jackson  v.  Harrington,  46  Curbay  v.  Bellemer,  70  Mich. 
9  Cow.  (N.  Y.)  86;  Adair  v.  Lott,  106.  See  Morse  v.  Hewett,  28  Mich. 
3  Hill  (N.  Y.)  182;  Reformed  481;  Sleight  v.  Roe,  125  Mich.  585; 
Church  V.  Schoolcraft,  5  Lans.  (N.  Manistee  Mfg.  Co.  v.  Cogswell,  103 
Y.)   206,  Mich.  602;    Michigan  Land  &  Iron 

43  Bennett  v.  Horr,  47  Mich.  221.  Co.  v.  Thoney,  89  Mich.  226;  Chris- 

44  Bennett  v.  Horr,  47  Mich.  221 ;  topher  v.  Detroit,  L.  &  N.  R.  Co., 
Cook  V.  Bertram,  86  Mich.   356.  56  Mich.  175. 

45  Harrett  v.  Kinney,  44  Mich.  47  Connecticut  Mut.  Life  Ins.  Co. 
457;    Whiting   v.    Butler,    29    Mich.  v.  Bulte,  45  Mich.  113. 

122,    127;    Michigan    Land   &   Iron  48  Snyder     v.     Hemmingway,     47 

Co.  V.  Thoney,  89  Mich.  231;  Paldi  Mich.    549;    Hemmingway   v.   Drew, 

V.   Paldi,  95   Mich.   410;    Moran   v.  47  Mich.  554. 

Moran,    106     Mich.     8;     PoweU    v.  48aRiggg    v.    Sterling,    51    Mich. 

Pierce,    168    Mich.    427;    Foster    v.  157. 


§  9  Ejectment  533 

the  record  title  of  plaintiff  is  perfect,  defendant  cannot 
show  that  the  deed  to  him  was  fraudulent  as  to  his 
grantor's  creditors.**  Defendant  may  show  that  plain- 
tiff's title  has  been  divested  by  a  stranger  to  the  pro- 
ceeding, as  by  a  tax  sale.*"  An  unassigned  dower  in- 
terest of  a  widow  cannot  be  shown  as  a  defense,  since 
merely  a  right  of  action.*^  Abandonment  of  occupancy 
by  defendant  after  the  commencement  of  the  action  is 
no  defense.*^ 

§  9.  Who  may  be  sued. 

Ejectment  does  not  lie  against  one  not  in  possession 
of  the  property  nor  exercising  any  acts  of  ownership  or 
control  over  it."  It  may  be  maintained  against  a  pur- 
chaser in  possession  under  a  void  or  irregular  foreclosure 
of  a  mortgage,**  or  against  one  who  goes  over  the  line  in 
constructing  a  partition  fence." 

'If  the  premises  for  which  the  action  is  brought  are 
actually  occupied  by  any  person,  such  actual  occupant 
must  be  named  a  defendant;  if  they  are  not  so  occupied, 
the  action  must  be  brought  against  some  person  exer- 
cising acts  of  ownership  on  the  premises  claimed,  or 
claiming  title  thereto  or  some  interest  therein,  at  the 
commencement  of  the  suit;  and  all  persons  claiming  any 
title  to  the  premises  adverse  to  that  claimed  by  the  plain- 
tiff may  in  all  cases  be  made  defendants  in  the  action." 

49  Bliss  V.  Slater,  144  Mich.  648.  66  Jud.    Act,   ch.    29,    §4;    Comp. 

BO  Lee  V.  Clary,  38  Mich.  223.  Laws    1915,    §13171;    Lockwood    v. 

SlMeCammon  v.  Detroit,  L.  &  N.  Drake,   1   Mich.   14;    Clark  v.  Hall, 

"R.  Co.,  66  Mich.  442.  19    Mich.    356;    Crane   v.    Seitz,    30 

52  0uthwaite   v.   Gunn,    180   Mich.  Mich.  453;    Anderson  v.  Courtright, 

66.  47  Mich.  161;  Hoyt  v.  Southard,  58 

63  Harrington     v.     City     of    Port  Mich.    432;     Haddy    v.    Tobias,    85 

Huron,    86    Mich.    46.      See    Connor  Mich.  326;    Farrand  v.  Kavanaugh, 

V.  Connor,  134  Mich.  355.  132  Mich.  436;  Hendricks  v.  Easson, 

64Bowen    v.    Brogan,    119    Mich.  49  Mich.  83;  Arnold  v.  Brechtel,  174 

218.  Mich.  147. 

66  Eose   V.   Linderman,   147   Mich.  Tenants  of  defendant  need  not  be 

372.  joined    as    defendants    where    they 


534  Ejectment  §  9 

A  husband  and  wife  who  occupy  premises  owned  by 
either  as  their  home  should  be  joined  as  defendants." 

§  10.  Election  between  defendants. 

The  statute  requires  that  where  there  are  several  de- 
fendants claiming  under  several  titles,  claims  or  posses- 
sions derived  from  a  different  source,  the  plaintiff  must 
elect  at  the  trial,  and  before  the  testimony  is  closed, 
against  which  he  will  proceed ;  ^*  but  this  does  not  apply 
where  the  action  is  against  one  claimant  and  those  in  pos- 
session under  him  and  where  the  same  defense  is  open 
to  all.69 

§  11.  Order  for  survey. 

If  the  court  in  which  the  action  is  pending  shall  be 
satisfied  that  a  survey  of  any  lands  in  the  possession  of 
either  party,  or  of  any  boundary  line  between  the  lands 
of  the  parties,  or  between  the  lands  of  either  of  them 
and  the  lands  of  other  persons,  is  necessary  or  expedient, 
to  enable  either  party  to  declare,  plead  or  prepare  for 
trial,  or  for  any  other  proceeding  in  the  action,  it  may, 
upon  the  application  of  either  party,  order  that  he  have 
leave  to  make  such  survey.  Such  order  must  specify  the 
premises  or  boundary  line  to  be  surveyed,  by  a  descrip- 
tion as  definite  as  may  be,  and  a  copy  of  it  must  be  served 
on  the  owner  or  occupant  of  the  premises  upon  which 

claim  no  interest  except  as  tenants,  Eowe    v.    Kellogg,    54    Mich.    206; 

do  not  complain  of  the  nonjoinder,  Bunce    v.    Bidwell,    43    Mich.    542; 

and   the  action   does  not  affect  the  Henry    v.    Gregory,    29    Mich.    68; 

houses   of  the   tenants  or   the  yard  Hodson  v.  Van  Possen,  26  Mich.  68. 

going    with    them.      Austin    v.    Cro-  Compare    Arnold    v.    Brechtel,    174 

well,  193  Mich.  296.  Mich.   147. 

67  Carby  V.  Combs,  166  Mich.  347;  68  Jud.   Act,   ch.   29,    §22;    Comp. 

Kalkes    v.    Storms,    93    Mich.    480;  Laws  1915,  §13189. 

Sessions  v.  Sherwood,  78  Mich.  234;  69  Campau    v.    Campau,    45   Mich. 

Haddy    v.    Tobias,    85    Mich.    326;  367. 
Cleaver    v.    Bigelow,    61    Mich.    47; 


§  13  Ejectment  535 

it  may  be  necessary  to  enter  to  make  such  survey,  previ- 
ous to  such  entry.^" 

§  12.  Commencement  of  action  and  service  of  process. 

The  action  may  be  commenced  by  service  of  summons 
or  of  the  declaration  with  notice  to  plead.^^ 

In  actions  of  ejectment,  if  the  premises  are  actually 
occupied,  the  process  or  declaration  must  be  served  by 
delivering  a  copy  thereof  to  the  defendant  named  there- 
in who  is  in  the  occupation  thereof,  personally,  or  by 
leaving  it  with  some  person  of  proper  age  at  the  dwelling 
house  of  such  defendant,  if  he  be  absent.^^  If  the  de- 
fendant or  any  defendant  named  in  the  declaration  or 
process  does  not  occupy  the  premises  claimed  by  the 
plaintiff,  the  declaration  or  process  must  be  served  upon 
such  defendant  personally,  if  he  can  be  found  within  this 
state,  and  such  service  may  be  made  in  any  part  of  the 
state;  but  if  such  defendant  cannot  be  served  by  reason 
of  his  not  being  found  in  the  state,  the  same  proceedings 
may  thereupon  be  had  as  in  chancery  cases  in  case  of 
absent,  concealed  or  non-resident  defendants.®^ 

§  13.  Declaration. 

In  the  action  of  ejectment  in  this  state,  the  use  of 
fictitious  names  of  plaintiffs  or  defendants  and  of  the 
names  of  any  other  than  the  real  claimants  and  the  real 
defendants,  and  the  statement  of  any  lease  or  demise  to 
the  plaintiff  and  of  any  ejectment  by  a  casual  or  nominal 
ejector  are  abolished,  and  it  is  sufficient  for  the  plaintiff 
to  aver  in  his  declaration  that  on  some  day,  therein  to  be 
specified,  and  which  shall  be  after  his  title  or  right  ac- 
crued, he  was  possessed  of  the  premises  in  question,  de- 
scribing them,  and,  being  so  possessed  thereof,  the  de- 

eojud.    Act,   ch.    33,    §9;    Comp.  62Jud.   Act,  ch.   29,    §13;    Comp. 

Laws  1915,  §  13366.  Laws  1915,  §  13180. 

61  See  Jud.  Act,  ch.  29,  §  5;  Comp.  63  Jud.   Act,  ch.   29,    §  14;    Comp. 

Laws   1915,   §  13172.  Laws  1915,   §  13181. 


536  Ejectment  §  13 

fendant  afterwards,  on  some  day  to  be  stated,  entered 
into  such  premises,  and  unlawfully  withholds  from  the 
plaintiff  the  possession  thereof,  to  his  damage  any  nom- 
inal sum  the  plaintiff  thinks  proper  to  state.^*  The 
declaration  need  not  disclose  the  various  relations  which 
exist  between  or  among  several  defendants  in  connection 
with  the  property.^* 

In  such  declaration,  the  premises  claimed  should  be 
described  with  such  convenient  certainty,  by  setting 
forth  the  section  or  part  of  a  section,  township  and  range, 
or  the  number  of  the  lot  or  otherwise,  that,  from  the  de- 
scription so  given,  possession  of  the  premises  may  be  de- 
livered.^® If  the  plaintiff  claims  an  undivided  share  or 
interest  in  any  premises,  he  must  state  it  particularly 
in  his  declaration.®''^ 

Except  in  ejectment  for  dower,®*  the  plaintiff  must  state 
in  his  declaration  whether  he  claims  in  fee  or  for  his 
own  life  or  for  the  life  of  another  or  for  a  term  of  years 
or  otherwise,  specifying  such  lives  or  the  duration  of 
such  term.®^  Under  this  statute,  plaintiff  is  not  bound 
under  the  forms  of  pleading  used  in  this  state  to  aver 
the  character  of  his  title  except  as  to  its  extent.'''®    But, 

64  Jud.  Act,  ch.  29,  §§6,  7;  Comp.  a  strip  of  land,  10  rods  wide,  off 
Laws  1915,  §§  13173,  13174.  from  the  west  side  of  the  S.  E.  V^ 

65  Crane  v.  Seitz,  30  Mich.  453.  of  the  S.  W,  %  of  section  35,"  is 
66Jud.    Act,    ch.    29,    §8;    Comp.      fatally   defective   for   indefiniteness. 

Laws  1915,  §  13175.  White  v.  Hapeman,  43  Mich.  267. 

The  following  description  is  suf-  Variance  in   description  as  fatal, 

ficient:    "The  following  real  estate  see    Wilson    v.    Hoffman,    54    Mich, 

and  premises  situate  in  the  city  of  246. 

Port    Huron,    county    of    St.    Clair,  67  Jud.    Act,   ch.    29,    §9;    Comp. 

and  being  known  and  designated  as  Laws  1915,  §  13176. 
the   undivided   eighth   part   of   that  68  See  Dower. 

part  of  the  lower  Westbrook  farm  69  Jud.  Act,   ch.   29,    §  10 ;    Comp. 

in   section   15,  town   6  north,   range  Laws   1915,   §  13177. 
17  east,  lately  conveyed,"  etc.,  "by  70  Richards    v.    Pierce,    44    Mich, 

deed,    and    recorded,"    etc.      Seeley  444;    Olin  v.  Henderson,  120  Mich. 

V.  Howard,  23  Mich.  11.  149. 

A  declaration  for  "a  portion  of 


§  13  Ejectment  537 

by  a  new  provision  in  the  Judicature  Act,  the  plaintiff 
must  attach  to  his  declaration,  if  he  claims  title,  a  state- 
ment of  the  title  relied  on,  showing  from  and  through 
whom  such  title  was  obtained,  and  the  page  and  book 
where  the  same  appears  of  record.  If  such  title  or  any 
portion  thereof  is  not  in  writing  or  does  not  appear  of 
record,  such  fact  must  be  set  forth  in  such  statement.  No 
written  evidence  of  title  can  be  introduced  on  the  trial 
unless  it  has  been  referred  to  in  such  statement,  but  the 
statement  may,  on  motion,  be  amended  and  made  more 
specific.'''^ 

State  Bar  Association  Form  of  Declaration  in  Ejectment 

(Title  of  course  and  cause.) 
The  plaintiff  says: 

1.  That,  on    ,   19..,  the  plaintiff  was  possessed  of  the  following 

premises:  (Describe  them),  which  he  claims  in  fee  (or,  for  his  life,  or  as 
the  case  may  be.) 

2.  That,  while  the  plaintiff  was  so  possessed,  the  defendant  afterwards, 
on   ,  19..,  entered  into  said  premises. 

3.  That  the  defendant  voluntarily  withholds  from  the  plaintiff  the  pos- 
session thereof. 

4.  Wherefore,  the  plaintiff  claims  a  judgment  for  the  possession  of  said 
premises  and  damages  in  the  sum  of dollars. 

Form  When  the  Plaintiff  Claims  in  Fee,  or  for  His  Own  Life  or  for 
the  Life  of  Another 

The  plaintiff  says: 

That  the  said  plaintiff,  heretofore,  to  wit,  on    ,  was  possessed  of 

certain  real  estate  and  premises,  with   the  appurtenances,   situate  in  the 

of ,  in  the  county  of ,  and  state  of  Michigan,  known 

and  described  as  follows,  that  is  to  say:  (Here  describe  the  premises 
claimed  with  such  convenient  certainty,  by  setting  forth  the  section  or 
part  of  a  section,  township  and  range,  or  the  part  of  the  lot  or  otherwise 
that,  from  such  description,  possession  of  the  premises  claimed  may  be 
delivered).  2.  That  the  said  plaintiff  claims  the  said  premises  in  fee 
(or,  for  his  own  life,  or,  for  the  life  of  one  E.  F.,  as  the  case  may  be). 
3.  That,  the  said  plaintiff  being  so  possessed  thereof,  the  said  defendant 

7lJud.   Act,  ch.   29,    §17;    Comp.  Mich.    91;    Kinney    v.    Harrett,    46 

Laws     1915,     §13184;     Goodall     v.  Mich.  90;   Allie  v.  Schmitz,  17  Wis. 

Henkel,    60    Mich.    382;    Michigan  169-174;  Ballance  v.  Rankin,  12  111. 

Cent.    R.    Co.    v.    McNaughton,    45  420;   Tyler,  Ej.  39. 


538  Ejectment  §  13 

afterwards,  to  wit,  on ,  entered  into  the  said  premises.     4.  That  the 

said  defendant  unlawfully  withholds  from  the  said  plaintiff  the  possession 
thereof. 

Form  of  Count  Where  the  Plaintiff  Claims  for  a  Term  of  Years 

The  plaintiff  says: 

1.  That  the  said  plaintiff,  heretofore,  to  wit,  on ,  was  possessed  of  cer- 
tain real  estate  and  premises,  with  the  appurtenances,  situate  in  the 

of ,  in  the  county  of ,  and  state  of  Michigan,  known  and  de- 
scribed as  follows,  to  wit:  (Describe  the  premises  claimed  with  such  con- 
venient certainty  by  setting  forth  the  section  or  part  of  a  section,  township 
and  range,  or  the  part  of  the  lot  or  otherwise  that,  from  such  description, 
the  possession  of  the  premises  claimed  may  be  delivered).  2.  That  the  said 
plaintiff  claims  the  said  premises  upon  the  demise  of  one  E.  F.  for  a  term 

of  years,  to  wit,  for  the  term  of    years  from  the   day  of 

,  A.  D ,  then  next  ensuing.     3.  That,  the  said  plaintiff  being 

so  possessed  thereof,  the  said  defendant  afterwards,  to  wit,  on ,  en- 
tered into  the  said  premises.  4.  That  the  said  term  is  not  yet  expired. 
5.  That  the  said  defendant  unlawfully  withholds  from  the  said  plaintiff 
the  possession  thereof. 

Form  of  Count  for  an  Undivided  Share  or  Interest 

The  plaintiff  says: 

1.  That  the  said  plaintiff,  heretofore,  to  wit,  on ,  was  possessed  of 

the  one  undivided  half  (or  other  part,  according  to  the  share  or  interest 
which   the    plaintiff    claims   in    the    premises)    of   certain   real   estate   and 

premises,  with  the  appurtenances,  situate  in  the   of    ,  in  the 

county   of    ,   and   state   of   Michigan,   and   known   and   described   as 

follows,  to  wit:  (Describe  the  premises  claimed  with  such  convenient  cer- 
tainty, by  setting  forth  the  section  or  part  of  a  section,  township  and  range, 
or  the  part  of  the  lot  or  otherwise,  that,  from  such  description,  possession 
of  the  premises  claimed  may  be  delivered) .  2.  That  the  said  plaintiff  claims 
the  said  premises  in  fee  (or,  for  his  own  life,  or,  for  the  life  of  one  E.  F., 
as  the  case  may  be).  3.  That,  the  said  plaintiff  being  so  possessed  thereof, 
the  said  defendant  afterwards,  to  wit,  on ,  entered  into  the  said  un- 
divided half  (or  other  part,  according  to  the  share  or  interest  which  the 
said  plaintiff  claims)  of  the  said  premises.  4.  That  the  said  defendant  un- 
lawfully withholds  from  the  said  plaintiff  the  possession  thereof. 

§  14.  Amendment. 

The  declaration  may  be  amended  the  same  as  in  per- 
sonal actions.'^ 

72  See    Arnold    v.    Brechtel,    174      erly  allowed  to  set  forth  plaintiff's 

Mich.   147.  interest    in    the   land    (Ludeman    v. 

Amendments  have  been  held  prop-       Hirth,  96  Mich.  17)  ;  to  correct  the 


§  16  Ejectment  539 

§  15.  Joinder  of  counts. 

In  any  case  other  than  where  the  action  is  brought  for 
the  recovery  of  dower,  the  declaration  may  contain  sev- 
eral counts,  and  several  parties  may  be  named  as  plain- 
tiffs, jointly  in  one  count,  and  separately  in  others.'* 

§  16.  Plea. 

In  ejectment,  a  defendant,  when  he  appeared,  was  com- 
pelled to  enter  into  a  consent  rule  and  to  plead  the  gen- 
eral issue  of  not  guilty,  and  consequently  no  special  plea 
could  be  adopted.  But,  in  some  instances,  the  courts 
would,  on  special  application,  permit  the  defendant  to 
plead  to  the  jurisdiction.''* 

Under  the  Michigan  statute,  in  actions  of  ejectment, 
no  demurrer,  plea  in  abatement  or  plea  to  the  jurisdic- 
tion can  be  filed.'^  The  objections  formerly  raised  by 
those  pleadings  must  now  be  raised  by  motion  to  dismiss 
or, by  notice  attached  to  the  plea  of  the  general  issue. 
The  defendant  can  plead  the  general  issue  only,  which 
is  the  same  as  in  personal  actions,  and,  under  such  plea, 
may  give  the  same  matter  in  evidence  as  upon  the  plea 
of  not  guilty  in  the  former  action  of  ejectment.  Under 
such  plea,  the  defendant  may  give  in  evidence  any  mat- 
ter which,  if  pleaded  in  the  writ  of  right  or  action  of 
dower,  would  bar  the  action  of  the  plaintiff.''^  But  if 
the  defendant  claims  title,  he  must  now  attach  to  his 

date     of      possession      (Newell     v.  206).     Also  to  correct  a  description 

McLarney,  49  Mich.   232)  ;    to   sub-  of   the   land    (Hartz   v.   Detroit,    P. 

stitute    the    proper    party    as   plain-  &  N.  Ry.,  153  Mich.  337). 

tiff  in  place  of  a  guardian  (Kinney  73  ,Jud.   Act,   ch.  29,   §11;    Comp. 

V.  Harrett,  46  Mich.  87)  ;   to  allege  Laws  1915,  §  13178. 

an    undivided    one-half    interest    in  74 1  Chit.  PI.  542. 

place    of    an    entire    fee    (Retan    v.  75  Jud.   Act,  ch.   29,   §16;    Comp. 

Sherwood,  120  Mich.  496)  ;    and  to  Laws  1915,   §  13183. 

conform     the     declaration     to     the  76  Id.  Special  notice  of  affirmative 

proofs    where    the    evidence    shows  defense  that  deed  was  void  need  not 

plaintiff    owned    only    an   undivided  be    given.      Kushler   v.   Weber,   205 

interest  (Hoban  v.  Cable,  102  Mich.  Mich.  400. 


540  Ejectment  §  16 

plea  a  statement  of  the  title  relied  on,  showing  from  and 
through  whom  such  title  was  obtained  and  the  page  and 
book  where  the  same  appears  of  record.  If  such  title  or 
any  portion  thereof  is  not  in  writing  or  does  not  appear 
of  record,  that  fact  must  be  set  forth  in  such  statement. 
No  written  evidence  of  title  can  be  introduced  on  the 
trial  unless  it  has  been  sufficiently  referred  to  in  such 
statement,  but  the  statement  may,  on  motion,  be  amended 
and  made  more  specific." 

The  common  law  rule  excluding  all  defenses  in  eject- 
ment which  are  not  legal  has  been  abrogated  in  many 
parts  of  the  Union,  but  the  courts  of  the  United  States 
still  adhere  to  it,  and  it  remains  in  force  also  in  this 
state."'"  Accordingly,  the  equitable  defense  that  the  title 
of  the  plaintiff  was  obtained  by  fraud  cannot  be  inter- 
posed.'® So,  parol  evidence  of  an  arrangement  by  which 
third  parties  were  to  have  an  interest  in  the  land  would 
be  inadmissible,  as  nothing  but  a  conveyance  of  the  legal 
title  of  the  plaintiff  could  defeat  the  action.""  So,  also, 
an  executory  contract  for  the  sale  of  land  could  not  be 
shown  to  defeat  the  plaintiff,  as  such  contract  gives  the 
vendee  merely  an  equitable  title,  the  legal  title  remaining 
in  the  vendor.'^  A  tax  deed  giving  a  prima  facie  title 
would  constitute  a  perfect  defense  to  the  action  of  eject- 
ment."'' 


77Jud.  Act,  ch.  29,  §§16,  17 
Comp.   Laws   1915,   §§  13183,   13184 

78Buell  V.  Irwin,  24  Mich.  145 
Jeffrey  v.  Hursh,  42  Mich.  563 
Harrett  v.  Kinney,  44  Mich.  457 
Whiting  V.  Butler,  29  Mich.  122 
Conrad  v.  Long,  33  Mich.  78;  Lo 
ranger  v.  Carpenter,  148  Mich.  549 


Paldi     V.     Paldi,     95     Mich.     410 
Moran     v.     Moran,     106     Mich.     8 
Geiges    v.    Greiner,    68    Mich.    153 
Yale    V.    Stevenson,    58    Mich.    537 
Shaw  V.   Hill,   83   Mich.   322;    Gates 
V.   Sutherland,   76  Mich.  231;    Fenn 
V.    Holme,    21    How.    (U.    S.)    481; 
Smith  V.  McCann,  24  How.   (U.  S.) 


Bix  V.  Smith,  145  Mich.  203 ;  Kausch  398 ;   Foster  v.  Mora,  98  U.  S.  425. 
V.   Briefer,   138   Mich.   284;    Cottrell  79  Harrett  v.  Kinney,  44  Mich.  457. 

V.  Moran,  138  Mich.  410;  Powell  v.  80  Conrad   v.   Long,   33    Mich.   78. 

Pierce,    168   Mich.    427;    Nowlen    v.  81  Buell  v.  Irwin,  24  Mich.  145. 

Hall,  128  Mich.  274;  Michigan  Land  82  Connecticut  Mut.  Life  Ins.   Co. 

&  Iron  Co.  V.  Thoney,  89  Mich.  226;  v.  Bulte,  45  Mich.  113. 


§  18  Ejectment  541 

§  17.  Notice  of  lis  pendens. 

It  is  required  by  statute  that,  upon  the  commence- 
ment of  any  action  of  ejectment,  the  plaintiff  shall  file 
for  record,  in  the  office  of  the  register  of  deeds  of  the 
county  wherein  the  lands  sought  to  be  recovered  are  sit- 
uated, a  notice  of  the  pending  of  such  suit,  setting  forth 
its  title  and  the  general  effect  thereof  and  a  description 
of  the  lands  to  be  affected  thereby.^*  And  it  is  the  duty 
of  the  register  of  deeds  to  receive,  file  and  record  such 
notice  in  a  book  to  be  kept  for  that  purpose,  upon  the 
payment  to  him  of  the  fees  allowed  by  law  for  record- 
ing deeds  of  conveyance.'* 

Form  of  Notice  of  the  Pendency  of  Suit 

(Title  of  court  and  cause.) 
To  Whom  It  May  Concern: 

Notice  is  hereby  given  that  this  cause  is  an  action  of  ejectment  now 
pending  in  said  court,  wherein  the  said  plaintiff  seeks  to  recover  from  the 
said  defendant  the  possession,  which  the  said  defendant  unlawfully  with- 
holds from  the  said  plaintiff,  of  the  following  described  lands,  to  wit: 
(Here  describe  the  lands.) 

Dated,  etc. 

J.  K., 
Plaintiff 's   Attorney. 

§  18.  Abatement  of  action. 

It  is  provided  by  statute  that  '*in  all  real  and  mixed 
actions,"  if  the  plaintiff  dies  before  final  judgment,  his 
heir,  within  such  time  as  the  court  allows,  may  appear 
and  prosecute  the  suit  in  the  same  manner  as  if  the 
action  had  been  originally  commenced  by  him,  or  the 
action  may  be  prosecuted  by  the  executor  or  administra- 
tor for  the  benefit  of  the  heir  or  of  the  creditors  of  the 
deceased.'^  But  no  real  action  is  now  in  use  in  this  state, 
and  the  only  mixed  action  which  obtains  is  that  of  eject- 
ment.   In  ejectment,  the  same  proceedings  may  be  had 

83Jud.   Act,   eh.   29,   §60;    Comp.  85  Jud.   Act,   ch.   12,   §42;    Comp. 

Laws  1915,  §  13227.  Laws  1915,   §  12393. 

84  Jud.   Act,   ch.   29,    §  61 ;    Comp. 
Laws  1915,   §  13228. 


542  Ejectment  §  18 

as  in  other  actions  to  substitute  the  names  of  the  execu- 
tors or  administrators  or  of  those  who  have  succeeded  to 
the  title  of  the  deceased  phiintiff,  and  the  issue  will  be 
tried  as  between  the  original  parties.^® 

If  there  are  several  plaintiffs  and  any  of  them  die  be- 
fore final  judgment,  the  heir,  executor  or  administrator 
of  the  deceased  party  may  be  admitted  on  motion  to 
prosecute  the  suit  jointly  with  the  survivors  in  the  same 
manner  as  if  he  had  joined  with  them  in  commencing 
the  suit.^'  If  the  interest  of  the  deceased  party  passes 
to  the  surviving  plaintiff,  or  if  there  be  no  motion  for  the 
admission  of  another  person  as  heir,  executor  or  admin- 
istrator within  the  time  allowed  by  the  court  for  that 
purpose,  the  surviving  plaintiffs  may  prosecute  the  suit 
for  so  much  of  the  premises  in  question  as  may  be  claimed 
by  them." 

Upon  the  death  of  a  sole  defendant  to  an  action  of 
ejectment,  the  suit  abates.^'  When  there  are  several  de- 
fendants and  any  of  them  dies  before  final  judgment,  the 
action  may  be  prosecuted  against  the  surviving  defend- 
ants for  so  much  of  the  premises  as  they  hold  or  claim,®" 
but  not  against  the  personal  representatives  of  the  de- 
ceased defendant.  His  share  of  the  case  is  left  as  at  com- 
mon law,  that  is,  the  action  is  abated  as  to  it.*^ 

The  action  is  not  abated  by  reason  of  the  right  or  title 
of  plaintiff  expiring  after  the  commencement  of  the 
suit,®^  nor  by  a  transfer  of  the  property  by  plaintiff  pen- 

86Jud.    Act,   ch.   29,    §25;    Comp.  90  Jurl.   Act,   eh.   12,    §45,  ch.   29, 

Laws   1915,   §13192;    Cook   v.   Bert-  §25;    Comp.    Laws    1915,    §§12396, 

ram,  86  Mich.  356.  13192;   Hoffman  v.  St.  Clair  Circuit 

87Jud.   Act,  ch.   12,   §43;    Comp.  Judge,  40  Mich.  351. 

Laws  1915,  §  12394.  91  People     v.     St.     Qair     Circuit 

88Jud.   Act,  ch.   12,   §44;    Comp.  Judge,    40    Mich.    351;     Conley    v. 

Laws  1915,   §  12395.  Sinclair,   163   Mich.   306. 

89McKenzie    v.   A.    P.    Cook   Co.,  92  Jud.  Act,  ch.   33,   §13;    Comp. 

113  Mich.  452.     See  also  Conley  v.  Laws  1915,  §  13370. 
Sinclair,   163   Mich.  306. 


§  19  Ejectment  543 

dente  lite,®'  nor  by  reason  of  an  alienation  of  the  prop- 
erty by  defendant.®* 

§  19.  Verdict. 

The  statute  has  prescribed  what  the  verdict  shall  be 
under  certain  circumstances  in  the  action  of  ejectment. 
Thus,  it  is  provided  that  if  the  action  be  brought  against 
several  defendants  and  a  joint  possession  or  claim  of 
title  of  all  be  proved,  the  plaintiff  will  be  entitled  to  a 
verdict  against  all,  whether  they  have  pleaded  separate- 
ly or  jointly,®^  and  if  it  appears  on  the  trial  that  any  of 
several  defendants,  at  the  commencement  of  the  suit,  oc- 
cupied or  claimed  distinct  parcels  in  severalty  or  jointly 
and  that  other  defendants  possessed  or  claimed  other 
parcels  in  severalty  or  jointly,  all  of  which  titles,  pos- 
sessions or  claims  were  derived  from  the  same  source, 
the  jury  are  required  to  state  particularly  in  their  ver- 
dict the  description  of  the  parcel  claimed  by  each  of  the 
defendants,  when  the  verdict  is  for  the  plaintiff;  but  in 
case  the  several  titles,  claims  or  possessions  were  derived 
from  a  different  source,  the  plaintiff  is  required  to  elect 
at  the  trial  and  before  the  testimony  will  be  regarded  as 
closed,  against  whom  he  will  proceed,  and  a  verdict  will 
be  rendered  for  the  defendants  not  proceeded  against.®^ 

And,  in  the  following  cases,  the  verdict  is  required  to 
be  as  follows:  ®' 

1.  If  it  be  shown  on  the  trial  that  all  the  plaintiffs 

93McKenzie   v.   A.    P.    Cook    Co.,  97  Jud.   Act,  ch.   29,   §23;    Comp. 

113  Mich.  452;  Snyder  v.  Hemming-  Laws    1915,    §13190. 

way,  47  Mich.  549  (following  Mich-  Verdict   for   plaintiff    is   not   bad 

igan   Cent.   R.    Co.   v.  McNaughton,  although  not  finding  that  defendant 

45  Mich.  87)  ;  Hemmingway  V.  Drew,  wrongfully    withheld    the    premises. 

47  Mich.  554.  Lockwood  v.  Drake,  1  Mich.  14. 

94  Jud.   Act,  ch.   33,   §  13 ;    Comp.  Sufficiency  of  description  of  land 

Laws  1915,  §  13370.  in  verdict,  see  Munger  v.  Grinnell, 

96  Jud.   Act,  ch.   29,   §  21 ;    Comp.  9  Mich.  544 ;  Lockwood  v.  Drake,  1 

Laws  1915,   §  13188.  Mich.   14. 

96  Jud.   Act,   ch.   29,   §22;    Comp. 
Laws  1915,  §  13189. 


544  Ejectment  §  19 

have  a  right  to  recover  the  possession  of  the  premises, 
the  verdict  in  that  respect  must  be  for  the  plaintiffs  gen- 
erally. 

2.  If  it  appears  that  one  or  more  of  the  plaintiffs  have 
a  right  to  the  possession  of  the  premises,  and  that  one  or 
more  have  not  such  right,  the  verdict  must  specify  for 
which  plaintiff  the  jury  find  and  as  to  which  plaintiff 
they  find  for  the  defendant. 

3.  If  the  verdict  be  for  any  of  the  plaintiffs  and  there 
be  several  defendants,  the  verdict  must  be  rendered 
against  such  of  them  as  were  in  possession  of  the  prem- 
ises or  as  claimed  title  thereto  at  the  commencement  of 
the  action. 

4.  If  the  verdict  be  for  all  the  premises  claimed,  as 
specified  in  the  declaration,  it  must  in  that  respect  be 
for  such  premises  generally. 

5.  If  the  verdict  be  for  a  part  of  the  premises  described 
in  the  declaration,  the  verdict  must  particularly  specify 
such  part  as  has  been  proved,  with  the  same  certainty 
as  that  required  in  the  declaration  in  the  description  of 
the  premises  claimed. 

6.  If  the  verdict  be  for  an  undivided  share  or  interest 
in  the  premises  claimed,  it  must  specify  such  share  or 
interest;  and  if  for  an  undivided  share  in  part  of  the 
premises  claimed,  it  must  specify  such  share  and  de- 
scribe such  part  of  the  premises  as  before  mentioned.^' 

7.  It  is  also  required  that  the  verdict  shall  specify  the 
estate  or  right  which  has  been  established  on  the  trial  by 
the  plaintiff  in  whose  favor  it  is  rendered,  whether  such 
estate  be  in  fee  or  for  his  own  life  or  for  the  life  of  an- 
other, stating  such  lives,  or  a  term  for  years  or  other- 
wise, specifying  the  duration  of  such  term.®* 

98Bringhurst  v.  Grand  Rapids  &  86,    92;     Schweitzer    v.    Bird,    204 

I.   R.   Co.,   78   Mich.   570;    Reilly   v.  Mich.  333. 

Blaser,  61  Mich.  399.  This  latter  provision  is  mandatory. 

99  Verdict    not    so   stating   cannot  Schweitzer  v.  Bird,  204  Mich.  333. 
be  sustained.   Shaw  v.  Hill,  79  Mich. 


§  20  Ejectment  545 

If  the  right  or  title  of  a  plaintiff  in  ejectment  expires 
after  the  commencement  of  the  suit,  but  before  trial,  the 
verdict  must  be  returned  according  to  the  fact,  and  judg- 
ment will  be  rendered  that  he  recover  his  damages  by 
reason  of  the  withholding  of  the  premises  by  the  de- 
fendant, to  be  assessed,  and  that,  as  to  the  premises 
claimed,  the  defendant  go  thereof  without  day.^ 

§20.  Judgment. 

In  cases  where  no  other  provision  is  made,  the  judg- 
ment in  the  action,  if  the  plaintiff  prevail,  is  that  the 
plaintiff  recover  the  possession  of  the  premises  accord- 
ing to  the  verdict  of  the  jury,  if  there  was  such  a  verdict ; 
or,  if  the  judgment  be  by  default,  according  to  the  de- 
scription thereof  in  the  declaration,  with  costs  to  be 
taxed.2  But  in  a  default  case,  it  is  not  sufficient  to  mere- 
ly refer  to  the  description  of  the  premises  in  the  declara- 
tion, although  such  irregularity  does  not  make  the  judg- 
ment subject  to  collateral  attack.^  Lands  not  described 
in  the  declaration  cannot  be  included,*  nor  can  a  subse- 
quently acquired  interest.^  It  cannot  run  against  one 
not  an  occupant  nor  in  any  way  connected  with  the  prem- 
ises by  claim  of  title  or  otherwise.^    It  may  be  for  a  less 

IJud.   Act,    ch.    29,    §24;    Comp.  be    that    the    plaintiff    recover    the 

Laws  1915,  §13191.  premises  "according  to  the  descrip- 

2Jud.   Act,    ch.    29,    §26;    Comp.  tion  contained  in  the  declaration," 

Laws  1915,  §  13193.    While  the  stat-  such  entry  is  not  so  defective  as  to 

ute    refers    only    to    a    verdict,    it  render    the    judgment    invalid,    the 

would  seem  that  it  is  used  as  syn-  premises  being  specifically  described 

onymous    with    findings    where    the  in  the   declaration,  and  title  in   fee 

trial  is   without  a  jury.     Effect  of  claimed,  and  the  defect  in  such  entry 

judgment    as   establishing   title,   see  is  cured    by   the   statute   of   amcnd- 

Busch  V.  Nester,  62  Mich.  381.     Im-  ments.     Morse  v.   Hewitt,  28   Mich, 

portance   of   record,  see   Bringhurst  481. 

v.  Grand  Rapids  I.  E.  Co.,  78  Mich.  4  Twogood  v.  Hoyt,  42  Mich.  609. 

570.  6  De  Mill  v.  Moffat,  49  Mich.  125: 

3  In  the  entry  of  the  judgment  for  Nowlen  v.  Hall,  128  Mich.  274. 

the  plaintiff,  the  premises  demanded  6  Martin  v.  Piatt,  64  Mich.  629. 
should  be  described,  but  if  the  entry 
1  Abbott— 35 


546  Ejectment  §  20 

quantity  or  interest  than  that  specified  in  the  declara- 
tion.' The  recital  in  the  judgment  of  an  incorporeal 
right  does  not  invalidate  it.®  When  the  title  of  the  plain- 
tiff has  expired  after  the  commencement  of  the  suit,  and 
before  trial,  the  judgment  is  that  the  plaintiff  recover  his 
damages  to  be  assessed,  and  that  as  to  the  premises,  the 
defendant  do  go  thereof  without  day.^  Judgment  for  the 
defendant  is  for  costs,  as  in  ordinary  actions." 

Form  of  Judgment  Upon  Finding  for  Plaintiff 
(Title  of  cause.) 

In  this  cause,  the  parties  being  in  court,  by  their  respective  attorneys, 
ready  for  trial,  and  the  same  having  been  duly  brought  on  for  trial  before 
the  court,  without  a  jury,  the  court,  having  heard  the  proofs  and  allegations 
of  the  parties  and  the  arguments  of  counsel,  after  mature  deliberation 
thereon,  finds  that  the  said  defendant  is  guilty  of  unlawfully  withholding 
from  the  said  plaintiff  the  premises  described  as  (insert  the  description), 
and  that  the  said  plaintiff  is  well  entitled  to  hold  the  same  in  fee  (or,  for 
his  own  life,  or  as  the  case  may  be),  as  the  said  plaintiff  has  in  his  decla- 
ration in  this  cause  complained  against  the  said  defendant,  and  that  the 
said  plaintiff  has  sustained  damages  on  occasion  of  the  premises,  over  and 
above  his  costs  and  charges  about  his  suit  in  this  behalf  expanded,  in  the 
sum  of  six  cents.  Therefore,  it  is  considered  that  the  said  plaintiff  do 
recover  against  the  said  defendant  the  possession  of  the  said  premises  and 
that  the  said  plaintiff  have  a  writ  of  possession  therefor;  and  it  is  further 
ordered  and  adjudged  that  the  said  plaintiff  do  recover  against  the  said 
defendant  the  damages  aforesaid,  together  with  his  coats  and  charges  by 
him  about  his  suit  in  this  behalf  expended,  to  be  taxed,  and  that  the 
said  plaintiff  have  execution  therefor. 

Form  of  Judgment  on  Verdict  for  Plaintiff 

(Title  of  cause.) 

In  this  cause,  the  parties  being  in  court,  by  their  respective  attorneys, 
ready  for  trial,  thereupon  came  a  jury,  to  wit   (insert  the  names  of  the 

7  Bringhurst  v.  Grand  Rapids  &  I.  come  to  an  end.  Michigan  Cent. 
R.  Co.,  78  Mich.  570  (declaration  R.  Co.  v.  McNaughton,  45  Mich.  87. 
should  be  amended  where  recovery  It  does  not  apply  to  cases  where 
only  for  undivided  half)  ;  Moran  v.  plaintiff  himself  has  sold  the  prop- 
Lezotte,  54  Mich.  83.  erty.     Jenney  v.  Potts,  41  Mich.  52. 

8  Taylor  v.  Gladwin,  40  Mich.  232.  10  Defendant    is    not    entitled    to 
9Jud.    Act,   ch.    29,    §24;    Comp.      judgment    for    taxes    paid    by    him 

Laws  1915,   §  13191.  on  the  land.     Weimer  v.  Porter,  42 

This  statute  does  not  apply  where  Mich.    569;    Ellsworth    v.    Freeman, 

the  right  or  title  is  transferred,  but  43  Mich.  488. 
only  to  cases  where  term  and  rights 


§  21  Ejectment  547 

jurors),  good  and  lawful  men,  who,  being  duly  chosen,  tried  and  sworn  well 
and  truly  to  try  the  issue  between  the  parties,  after  hearing  the  proofs  and 
allegations  of  the  parties,  the  arguments  of  counsel  and  the  charge  of  the 
court,  retired  from  the  bar,  under  the  charge  of  S.  T.,  an  officer  of  the  court, 
duly  sworn  for  that  purpose,  to  consider  of  their  verdict  to  be  given,  and, 
after  being  absent  for  a  time,  return  into  court  and  say  upon  their  oath 
that  the  said  defendant  is  guilty  of  unlawfully  withholding  from  the  said 
plaintiff  the  premises  described  as  (insert  the  description),  and  that  the  said 
plaintiff  is  well  entitled  to  hold  the  same  in  fee  (or,  for  his  own  life,  or 
as  the  case  may  be),  as  the  said  plaintiff  has  in  his  declaration  in  this 
cause  complained  against  the  said  defendant,  and  that  they  assess  the  dam- 
ages of  the  said  plaintiff  at  the  sum  of  six  cents.  Therefore,  it  is  consid- 
ered that  the  said  plaintiff  do  recover  against  the  said  defendant  the  pos- 
session of  the  said  premises,  according  to  the  verdict  of  the  said  jury,  and 
that  the  said  plaintiff  have  a  writ  of  possession  therefor;  and  it  is  further 
ordered  and  adjudged  that  the  said  plaintiff  do  recover  against  the  said  de- 
fendant the  damages  aforesaid,  together  with  his  costs  and  charges  by  him 
about  his  suit  in  this  behalf  expended,  to  be  taxed,  and  that  the  said 
plaintiff  have  execution  therefor. 

Form  of  Judgment  Upon  Finding  by  Court  for  Defendant 

(Title  of  cause.) 

In  this  cause,  the  parties  being  in  court,  by  their  respective  attorneys, 
ready  for  trial,  and  the  same  having  been  brought  on  for  trial  before  the 
court  without  a  jury,  the  court,  after  hearing  the  proofs  and  allegations  of 
the  parties  and  the  arguments  of  counsel,  after  mature  deliberation  thereon, 
finds  that  the  said  defendant  is  not  guilty  of  unlawfully  withholding  from 
the  said  plaintiff  the  premises  described,  in  manner  and  form  as  the  said 
plaintiff  has  in  his  declaration  in  this  cause  alleged.  Therefore,  it  is  consid- 
ered that  the  said  plaintiff  take  nothing  by  his  suit,  and  that  the  said 
defendant  do  go  thereon  without  day;  and  it  is  further  considered  that  the 
said  defendant  do  recover  against  the  said  plaintiff  his  costs  and  charges 
by  him  about  his  defense  in  this  behalf  expended,  to  be  taxed,  and  that 
the  said  defendant  have  execution  therefor. 


§  21.  Judgment  by  default. 

**Upon  filing  due  proof  of  service  of  process,  or 
declaration,  or  of  the  due  publication  of  such  order  and 
compliance  in  all  respects  with  the  requirements  of  law  in 
case  of  service  by  publication,  or  of  the  service  of  a  copy 
of  such  order  personally  on  such  defendant  within  the 
time  limited  therein,  if  such  defendant  shall  neglect  to 
appear  and  plead  within  the  time  provided  by  law  or  rule 


548  Ejectment  §  21 

of  court,  his  default  for  not  appearing  and  pleading  may 
be  entered  as  in  other  cases."  " 

Form  of  Judgment  by  Default  for  Plaintiff 
(Title  of  cause.) 

In  this  cause,  tlie  default  of  the  said  defendant  for  want  of  an  appear- 
ance (or,  a  plea)  having  been  duly  filed,  whereby  the  said  defendant  re- 
mains in  this  cause  undefended  against  the  said  plaintiff,  wherefore  the 
said  plaintiff  ought  to  recover  against  the  said  defendant  the  possession 
of  the  premises  described  in  the  declaration  of  the  said  plaintiff  in  this 
cause,  together  with  his  costs  and  charges  by  him  about  his  suit  in  this 
behalf  expended.  Therefore,  it  is  ordered  and  adjudged  by  the  court  now 
here  that  the  said  plaintiff  do  recover  against  the  said  defendant  the  pos- 
session of  the  premises  aforesaid,  according  to  the  description  thereof  con- 
tained in  the  said  declaration,  and  that  the  said  plaintiff  have  a  writ  of 
possession  therefor;  and  it  is  further  ordered  and  adjudged  by  the  court 
that  the  plaintiff  do  recover  against  the  defendant  his  costs  and  charges 
by  him  about  his  suit  in  this  behalf  expended,  to  be  taxed,  and  that  th« 
plaintiff  have  execution  therefor. 

§  22.  Conclusiveness  and  vacation  of  judgment. 

Every  judgment  in  ejectment  rendered  upon  a  verdict, 
or  upon  default  after  personal  service,  is  by  statute  made 
conclusive  as  to  the  title  established  in  such  action,  upon 
the  party  against  whom  the  same  is  rendered,  and  against 
all  persons  claiming  from,  through,  or  under  such  party 
by  title  accruing  after  the  commencement  of  such  action, 
unless  set  aside  or  reversed.^^ 

Every  judgment  in  ejectment  rendered  by  default  when 
no  personal  service  is  had  or  appearance  entered  is,  from 
and  after  two  j^ears  from  the  time  of  its  rendition,  conclu- 
sive upon  the  defendant  and  upon  all  persons  claiming 
from  or  through  him  by  title  accruing  after  the  com- 
mencement of  the  action;  but,  within  three  years  after  the 
rendering  of  such  judgment,  on  the  application  of  the  de- 
fendant, his  heirs,  executors,  administrators  or  assigns, 
the  court  may  vacate  the  judgment  and  grant  a  new  trial, 
if  satisfied  that  justice  will  be  thereby  promoted  and  the 

llJud.   Act,  ch.   29,   §15;    Comp.  12  Jud.   Act,  ch.  29,   §29;    Comp. 

Laws  1915,  §  13182.  Laws  1915,  §  13196. 


§  22  Ejectment  549 

rights  of  the  parties  more  satisfactorily  ascertained  and 
established.^^  If  the  defendant  in  ejectment,  at  the  time 
of  docketing  the  judgment  therein  by  default,  be  either 
(1)  within  the  age  of  twenty-one  years,  (2)  insane  or  (3) 
imprisoned  upon  conviction  of  a  criminal  offense  for  any 
term  less  than  for  life,  the  time  during  which  such  dis- 
ability continues  will  not  be  deemed  any  portion  of  the 
two  years  mentioned,  but  any  such  person  will,  on  motion 
therefor,  be  entitled  to  a  new  trial  at  any  time  within 
three  years  after  such  disability  is  removed.^*  And  if  he 
dies  during  the  continuance  of  such  disability,  his  heirs, 
executors  or  administrators  may  be  substituted  in  the  ac- 
tion and  will  be  entitled  to  such  new  trial  at  any  time 
within  three  years  after  his  death.^^  Except  as  herein 
stated,  no  new  trial  in  an  action  of  ejectment  will  be 
granted  as  a  matter  of  course. ^^ 

**If  the  plaintiff  shall  have  taken  possession  of  the 
prernises  by  virtue  of  any  recovery  in  ejectment,  such 
possession  shall  not  in  any  way  be  affected  by  the  vacat- 
ing of  any  judgment,  as  herein  provided;  and  if  the  de- 
fendant recover  on  any  new  trial  hereby  authorized,  he 
shall  be  entitled  to  a  writ  of  possession  in  the  same  man- 
ner as  if  he  were  plaintiff. "  * '  Upon  any  new  trial  granted 
as  herein  provided,  the  defendant  may  show  any  matters 
in  bar  of  a  recovery,  which  he  might  show  to  entitle  him 
to  the  possession  of  the  premises  if  he  were  plaintiff  in 
the  action."  ^' 

All  recoveries  had  by  agreement  of  parties,  or  by  fraud, 
against  any  tenant  for  life,  in  dower  or  by  the  curtesy,  of 
any  lands,  tenements  or  hereditaments,  shall  be  void  as 
against  all  persons  to  whom  any  reversion  or  remainder 

ISJud.   Act,  ch.  29,  §29;    Comp.  16  Jud.   Act,  ch.   29,    §30;    Comp. 

Laws  1915,  §  13196.  Laws  1915,  §  13197. 

UJud.   Act,  ch.   29,  §32;    Comp.  17  Jud.    Act,    ch.    29,    §§34,    35; 

Laws  1915,   §  13199.  Comp.  Laws  1915,  §§  13201,  13202. 

15  Jud.   Act,  ch.   29,  §  33 ;    Comp. 
Laws  1915,   §  13200. 


550  Ejectment  §  22 

of  such  lands  shall  appertain,  and  as  against  their  heirs, 
unless  the  appearance  of  the  person  having  such  rever- 
sion or  remainder  shall  have  been  duly  entered  in  the 
court  where  such  recovery  shall  be  had.^^  And  if  any 
tenant  for  life,  in  dower  or  by  the  curtesy,  or  any  tenant 
for  years  be  impleaded,  and  the  person  to  whom  the  re- 
version or  remainder  appertains  shall  come  into  court 
beforfe  trial  or  judgment  by  default,  and  pray  to  be  re- 
ceived to  defend  his  right,  he  will  be  received  for  that 
purpose  and  permitted  to  plead  to  the  action,  upon  such 
terms  as  the  court  may  deem  just."  And,  if  any  tenant 
for  life  or  years  make  default,  or  give  up  any  lands  de- 
manded, so  that  judgment  be  given  on  such  default  or 
surrender,  the  heir,  or  person  to  whom  the  reversion  or 
remainder  of  such  lands  appertains  may,  after  the  ter- 
mination of  the  estate  of  such  tenant,  have  an  action  of 
ejectment  to  recover  the  same  lands.^" 

§  23.  Filing'  and  recording. 

A  copy  of  any  final  judgment  in  ejectment  affecting  or 
relating  to  the  title  to  real  estate,  duly  certified  by  the 
clerk  of  the  court  under  its  seal,  may  be  recorded  where 
the  property  is  situated  and  when  so  recorded  has  the 
same  effect  as  a  recorded  deed.  The  party  in  whose  favor 
any  final  judgment  in  ejectment  shall  be  rendered  shall, 
within  thirty  days  after  the  rendition  thereof,  file  for 
record  in  said  register's  office,  a  duly  certified  copy  of  said 
final  judgment,  and  in  case  of  failure  so  to  do,  the  com- 
mencement of  said  suit  or  the  rendition  of  said  judgment 
shall  not  be  operative  as  constructive  notice  to  pur- 
chasers of  said  real  estate  of  the  right  or  title  of  said 
plaintiff  or  of  any  right  or  title  established  by  said  final 

18Jud.    Act,    ch.    33,    §3;    Comp.  20  Jud.    Act,    eh.    33,    §2;    Comp. 

Laws  1915,  §  13360.  Laws  1915,  §  13359. 

19  Jud.    Act,   ch.    33,    §  1 ;    Comp. 
Laws  1915,  §  13358. 


§  25  Ejectment  551 

judgment,  until  such  notice  of  suit,  or  certified  copy  of 
judgment  shall  be  so  filed  for  record.^^ 

§  24.  Recovery  of  mesne  profits. 

The  original  object  of  the  action  of  ejectment  was  the 
recovery  of  damages  claimed  by  a  tenant  for  a  term  of 
years  for  a  forcible  ejection  or  ouster  from  the  land  de- 
mised.^^  Afterwards  the  courts  of  law,  in  analogy  to  the 
practice  of  the  courts  of  equity  in  obliging  an  ejector  to 
make  a  specific  restitution  of  the  land,  introduced  a 
practice  whereby  the  plaintiff  was  allowed  to  recover 
not  merely  the  damages  which  he  had  sustained,  but  also 
the  possession  of  the  land,  and  the  principal  use  of  the 
action  came  to  be  that  of  trying  the  title  to  the  land. 
When  the  title  came  to  be  the  principal  question  in  the 
action,  the  damages,  which  formerly  were  the  main  ob- 
ject, were  usually  recovered  in  only  a  very  small  and 
inadequate  amount,  such  as  a  shilling  or  some  other 
trivial  sum;  and,  in  this  condition  of  the  action,  there- 
fore, in  order  to  complete  the  remedy  when  the  posses- 
sion had  been  long  detained  from  him  who  had  the  right 
to  it,  an  action  of  trespass  lay,  after  a  recovery  in  eject- 
ment, to  recover  the  ' '  mesne  profits  " ;  by  which  is  meant 
the  rents  and  profits  which  the  tenant  in  possession  had 
wrongfully  received.^* 

In  this  state,  it  is  provided  by  statute  that  the  plain- 
tiff recovering  judgment  in  ejectment  shall  also  be  en- 
titled to  recover  damages  for  rents  and  profits  of  the 
premises  recovered.^* 

§  25.  Suggestion  of  claim. 

The  plaintiff  recovering  judgment  in  an  action  of 
ejectment,  and  seeking  to  recover  damages  for  the  rents 

21Jud.   Act,   ch.   29,   §60;    Coinp.  23  3  Cooley's  Bl.  Comm.  205. 

Laws  1915,  S  13227.  24Jud.   Act,  ch.   29,   §36;    Comp. 

22  Stcph.  PI.  53.  Laws  1915,  §  13203. 


552  Ejectment  §  25 

and  profits  of  the  premises  recovered,  must,  within  one 
year  after  the  docketing  of  the  judgment,  make  and  file 
a  suggestion  of  such  claim  with  the  clerk  of  the  court 
in  which  the  judgment  was  entered,  as  a  continuation  of 
the  same.^^  The  judgment  here  referred  to  is  the  final 
judgment  in  the  cause,  which  does  not  relate  back  to  any 
other  judgment  taken  in  the  cause.  On  the  vacation  of  a 
judgment  in  ejectment  in  favor  of  plaintiff,  his  sugges- 
tion of  a  claim  for  damages,  based  upon  such  judgment, 
is  thereby  abated  and  dies  with  the  judgment.^^ 

A  suggestion  of  a  claim  for  mesne  profits  is  required 
to  be  substantially  in  the  same  form  as  a  declaration  in 
assumpsit  for  use  and  occupation,  as  near  as  may  be,  and 
may  be  against  the  defendants  liable  for  the  rents  and 
profits,  omitting  those  not  liable.  A  notice  must  be  an- 
nexed to  the  suggestion  in  such  form,  as  near  as  may  be, 
as  is  required  to  be  attached  to  a  declaration  in  suits 
commenced  by  declaration,  notifying  the  defendant  that 
he  is  required  to  plead  to  the  suggestion  within  fifteen 
days  after  service  thereof,  and  a  copy  of  the  suggestion 
and  of  the  notice  must  be  served  on  the  defendants 
named  therein  in  the  same  manner  as  in  cases  of  such 
declarations." 

Form  of  Suggestion  of  Claim  for  Bents  and  Profits 

(Title  of  court  and  cause.) 

And  now  at  this  day,  to  wit,  on  ,  at  ,  before  the  said  cir- 
cuit court  for  the  county  of   ,  comes  the  said  A.  B.,  by  J.  K.,  his 

attorney,  according  to  the  statute  in  such  case  made  and  provided,  and 
suggests  to  the  said  court  and  gives  the  said  court  now  here  to  understand 
and  be  informed  that  the  said  A.  B.  claims  from  the  said  C.  D.  the  sum 

of dollars,  in  which  said  sum  the  said  C.  D.  is  indebted  to  the  said 

A.  B.  for  the  use  and  occupation  of  the  real  estate  and  premises  described 

in  the  judgment  heretofore  rendered  in  said  cause,  from  the day  of 

,  A.  D ,  until  the  day  of ,  A.  D ;  dur- 

26Jud.   Act,   ch.   29,    §37;    Comp.  27  Jud.   Act,   ch.    29,    §38;    Comp. 

Laws  1915,  §  13204.  Laws  1915,  §  13205. 

26  Williams     v.     Ottawa     Circuit 
Judge,  79  Mich.  549. 


§  27  Ejectment  553 

ing  all  of  which  time  the  said  C.  D.  enjoyed  the  mesne  profits  thereof,  the 

value  of  which  said  profits  amounts  to  the  sum  of    dollars,  above 

claimed,  and,  being  so  indebted,  as  aforesaid,  the  said  C.  D.,  in  considera- 
tion   thereof,   afterwards,   to    wit,    on    ,   at    ,   undertook  and 

promised  the  said  A.  B,  to  pay  him  the  said  sum  of dollars,  when 

he,  the  said  C.  D.,  should  be  thereunto  afterwards  requested;  yet  the  said 
C.  D.,  although  often  requested  so  to  do,  has  not  yet  paid  the  said  sum 

of dollars,  or  any  part  thereof,  to  the  said  A.  B.,  but  so  to  do  has 

hitherto  wholly  neglected  and  refused,  and  still  does  neglect  and  refuse,  to 

the  damage  of  the  said  A.  B.  of  the  said  sum  of    dollars,  above 

claimed. 

J.  K., 
Attorney   for   Plaintiff. 

Form  of  Notice  to  Plead  to  Suggestion  of  Damages 
(Title  of  court  and  cause.) 
To  the  Above-Named  Defendant: 

Please  to  take  notice  that,  a  suggestion  of  damages  in  this  cause,  of 
which  the  annexed  is  a  copy,  has  been  duly  filed  in  the  office  of  the  clerk 
of  said  court  and  that  you  are  required  to  plead  to  said  suggestion  within 
fifteen  days  after  service  upon  you  hereof. 
Djited,  etc. 

Yours,  etc., 

J.  K., 
Plaintiff's  Attorney. 

§  26.  Proceeding's  by  defendants. 

The  defendants  may  plead  to  the  suggestion  and  give 
notice  of  any  special  matters  in  bar  of  the  claim,  except 
such  as  were  or  might  have  been  controverted  in  the  ac- 
tion of  ejectment,  in  the  same  manner  as  in  personal 
actions,  and  may  show  on  the  trial,  in  bar  or  in  mitiga- 
tion of  the  damages  claimed  by  the  plaintiff,  a  recovery 
by  them  or  by  any  other  person  of  the  same  premises  or 
of  part  thereof  subsequent  to  the  verdict  in  the  action  of 
ejectment.^' 

§  27.  Trial  of  issue. 

If  an  issue  of  fact  be  joined  on  the  suggestion,  it  is 
tried  as  in  other  causes,  and,  if  found  for  the  plaintiff, 

28Jud.   Act,  ch.   29,   §39;    Comp. 
Laws  1915,  §  13206. 


554  Ejectment  §  27 

the  same  jury  must  assess  the  damages  to  the  amount  of 
the  mesne  profits  received  by  the  defendant  since  he 
entered  into  the  possession  of  the  premises,  subject  to 
the  restrictions  which  will  be  presently  mentioned.^* 

On  the  trial  of  the  issue,  the  plaintiff  will  be  required 
to  establish,  and  the  defendant  may  controvert,  the  time 
when  the  defendant  entered  into  possession  of  the  prem- 
ises, the  time  during  which  he  enjoyed  the  mesne  profits 
and  the  value  of  such  profits,  but  the  record  of  the  re- 
covery in  the  action  of  ejectment  will  not  be  evidence 
of  such  time.^°  It  is  for  the  value  of  the  use  of  the 
premises  while  withheld  by  the  defendant  that  the  plain- 
tiff is  entitled  to  recover,  and,  while  the  amount  received 
by  the  defendant  for  such  use  may  be  properly  shown  as 
bearing  upon  the  question  of  such  value,  yet  that  amount 
is  neither  controlling  nor  binding  upon  the  plaintiff.  The 
plaintiff  is  entitled  to  recover  that  amount  and  as  much 
more  as  he  can  show  the  value  of  the  use  of  the  premises 
to  be.  The  fact  that,  at  the  time  the  suggestion  of  plain- 
tiff's claim  for  mesne  profits  was  made,  the  defendant 
had  not  received  any  rents  and  profits  does  not  prevent 
recovery  for  them  by  the  plaintiff;  ^^  but  the  plaintiff  can 
recover  the  rents  and  profits  for  no  longer  term  than  six 
years  immediately  preceding  the  time  when  the  sugges- 
tion is  served  on  the  defendant.^^ 

§  28.  Set-off. 

On  the  trial  of  the  issue,  the  defendant  has  the  right 
to  set  off  permanent  improvements  made  on  the  prem- 
ises, to  the  amount  of  the  plaintiff's  claim,  and,  in  esti- 
mating the  plaintiff's  damages,  the  value  of  the  use  by 
the  defendant  of  any  improvements  made  by  him,  or 
purchased  by  him  in  good  faith  from  any  person  from 

29Jud.    Act,   eh.   29,  §40;    Comp.  31  Noble  v.  Fairs,  58  Mich.  637. 

Laws  1915,   §13207.  32  Jud.   Act,   ch.   29,    §42;    Comp. 

SOJud.   Act,  ch.   29,  §41;    Comp.      Laws  1915,  §13209. 
Laws  1915,  §  13208. 


§  30  Ejectment  555 

whom  he  derives  color  of  title  thereto,  will  not  be  allowed 
to  the  plaintiff.^^ 

§  29.  Assessment  of  damag-es. 

If  no  issue  of  fact  be  joined  on  the  plaintiff's  sugges- 
tion of  his  claim  for  damages  for  the  mesne  profits,  and 
judgment  is  rendered  against  the  defendant  by  default 
or  otherwise,  the  value  of  the  mesne  profits  must  be  as- 
sessed and  the  plaintiff's  damages  ascertained  in  the 
same  manner  as  in  other  cases.^*  The  plaintiff  must 
establish  the  same  matters  as  when  an  issue  of  fact  is 
joined,  and  the  defendant  may  in  like  manner  contro- 
vert them  and  make  any  set-off  to  which  he  is  entitled, 
and  the  jury  must  assess  the  damages  in  the  same  man- 
ner.^* Upon  the  return  of  an  inquisition  of  damages  or 
upon  the  verdict  of  the  jury  in  case  an  issue  is  joined, 
the  court  will  render  judgment  as  in  actions  of  assumpsit 
for  use  and  occupation,  and  the  judgment  will  have  the 
like  effect  in  all  respects.^^ 

§  30.  Proceeding's  in  case  of  death  of  plaintiif . 

If  a  plaintiff  in  ejectment  dies  after  issue  joined  or 
judgment  therein,  his  personal  representatives  may  en- 
ter a  suggestion  of  his  death  and  of  the  granting  of  let- 
ters testamentary  or  of  administration  to  them  and 
thereupon  suggest  their  claim  for  mesne  profits  in  the 
same  manner  and  with  the  like  effect  as  the  deceased 
might  have  done  if  living,  and  the  same  proceedings  in 
all  respects  will  be  had  thereon.^"'' 

83Jud.   Act,  ch.  29,   §43;    Comp.  Harrington,  18  Mich.  213. 

Laws  1915,  §13210.  34Jud,   Act,  ch.  29,   §48;    Comp. 

Although  defendant  is  not  entitled  Laws  1915,  §  13215. 

to   compensation    for   improvements,  35Jud.   Act,  ch.   29,   §49;    Comp. 

under  the  statute  relating  to  mak-  Laws  1915,  §  13216. 

ing  and  filing  a  claim  therefor,  ho  86    Jud.  Act,  ch.  29,  §50;  Comp. 

may  still  obtain  compensation  there-  Laws  1915,  §  13217. 

for  to  some  extent  by  way  of  set-  87  Jud.   Act,  ch.   29,   §  51 ;    Comp. 

off  if  plaintiff  proceeds  for  the  re-  Laws  1915,  §  13218. 
covery    of   mesne   profits.      King    v. 


556  Ejectment  §  31 

§  31.  Recovery  of  compensation  for  buildings  and  im- 
provements. 

At  the  common  law,  there  could  be  no  recovery  as 
against  the  holder  of  the  title  for  betterments.  They 
became  a  part  of  the  freehold  and  passed  by  the  recov- 
ery in  ejectment.  The  plaintiff  was  placed  in  possession 
of  the  land  in  its  improved  condition. ^^  In  this  state, 
relief  is  provided  by  statute  in  the  form,  not  of  a  per- 
sonal judgment  against  the  plaintiff,  but  by  making 
payment  for  the  bettemients  a  condition  precedent  to  his 
obtaining  possession.  So  whenever,  in  an  action  of 
ejectment,  the  plaintiff  or  any  one  or  more  of  several 
plaintiffs,  recovers,  or  recovers  any  undivided  interest 
in  the  premises,  the  defendant  or  defendants  will  be  al- 
lowed compensation,  in  proportion  to  such  recovery,  for 
buildings  and  improvements  made  by  him  or  them,  or  by 
any  person  through  whom  he  or  they  claim  title,  to  the 
extent  that  such  buildings  and  improvements  increase 
the  present  value  of  the  premises,  provided  the  defend- 
ant or  defendants,  or  the  persons  through  whom  he  or 
they  claim  title,  were  in  actual  peaceable  occupation  of 
the  premises  for  six  years  before  the  commencement  of 
the  action,  or  provided  the  premises  were  so  occupied  for 
a  less  time  than  six  years  under  a  color  of  title  and  in 
good  faith.^^ 

The  character  of  the  occupation  contemplated  by  the 
statute  is  that  which  under  the  rules  of  the  common  law 
entitles  one  to  acquire  title  by  adverse  possession.  It 
must  be  actual,  open  and  peaceable.*®  The  good  faith 
required  is  simply  an  honest  belief  of  the  occupant  in 
his  right  or  title.     The  fact  that  diligence  on  his  part 

88Lemerand  v.  Flint,  etc.,  E.  Co.,  Batzer,   195  Mich.   235;    Kushler  v. 

117  Mich.  309;  Robinson  v.  Batzer,  Weber,  205  Mich.  400. 

195  Mich.  235.  Improvements  in  fact  a  detriment 

89  Jud.   Act,  ch.   29,   §44;    Comp.  not  allowed  for.     Kushler  v.  Weber, 

Laws  1915,   §13211;   Jones  v.  Mer-  205  Mich.  400. 

rill,    113    Mich.    433;     Robinson    v.  40  Jones  v.  Merrill,  113  Mich.  433. 


§  31  Ejectment  557 

might  have  disclosed  to  him  that  he  had  no  title  or  that 
he  knew  the  plaintiff  claimed  the  premises  does  not  neces- 
sarily negative  his  good  faith.*^  Nor  does  the  fact  that 
he  claims  mider  a  quit-claim  deed.*^  The  question  of  the 
good  faith  of  the  defendant  is  usually  one  for  the  jury.*' 
The  statute  affirms  an  equitable  right  and  should  re- 
ceive no  technical  construction  which  will  interfere  with 
the  purpose  aimed  at.**  But  only  a  defendant  who  has 
been  in  actual  adverse  possession  of  the  premises,  either 
for  six  years  or  under  color  of  title  and  in  good  faith, 
may  have  compensation  for  buildings  and  improve- 
ments,*^ and  also  the  plaintiff  must  have  an  estate  in  fee. 
An  estate  for  life  in  the  plaintiff  or  any  other  estate  less 
than  the  fee  is  not  sufficient  for  this  purpose.*^  And 
where  the  occupation  of  the  land  by  the  defendant  is 
only  by  virtue  of  a  license  implied  from  an  executory 
contract  for  the  sale  of  the  land  which  does  not  purport 
to  convey  any  legal  possessory  interest  in  the  land  to  the 
vendee,  no  claim  for  improvements  can  be  based  upon 
such  contract.*"''  So  also,  a  defendant  who  has  entered 
as  a  tenant  and  made  improvements,  in  the  absence  of 
any  assertion  of  an  adverse  holding,  cannot  recover  the 
value  of  improvements  made  by  him.*^  When  a  grantor 
remains  in  possession  of  the  granted  premises  in  sub- 
ordination to  the  right  of  the  grantee,  and  during  such 
occupancy  buys  an  outstanding  tax  title,  the  recording 

41  Petit  V.  Flint,  etc.,  R.  Co.,  119  400;  Boucher  v.  Tremble,  140  Mich. 
Mich.  492;  Thomas  v.  Wagner,  131  352;  Powell  v.  Pierce,  168  Mich. 
Mich.  601;  Miller  v.  Clark,  56  Mich.  427;  Closser  v.  McBride,  182  Mich. 
337.     See  also  Cook  v.  Bertram,  86  594. 

Mich.  356.  Defendant  must  have  had  at  least 

42  v^lcland  V.  Clark,  123  Mich.  179.  a     colorable     right     to     possession. 

43  Jones  v.  Merrill,  113  Mich.  433;  Powell  v.  Pierce,  168  Mich.  427. 
Miller  v.  Clark,  56  Mich.  337.  46  Burkle  v.  Ingham  Circuit  Judge, 

44  Petit  V.  Flint,  etc.,  R.  Co.,  119  42  Mich.  513. 

Mich.  492.  47  Buell    v.    Irwin,    24    Mich.    145. 

46Kushler    v.    Weber,    205    Mich.  48  Wolf  v.   Holton,  92  Mich.   136. 


558  Ejectment  §  31 

of  the  tax  deed  is  not,  standing  alone,  such  an  assertion 
of  an  independent  hostile  title  as  will  entitle  the  grantor 
to  recover  for  improvements  made  after  securing  such 
tax  deed;  but  a  claim  of  an  adverse  holding  thereunder 
must  have  been  expressly  asserted  and  brought  home  to 
the  grantee." 

It  should  also  be  observed  that  a  defendant  cannot 
recover  for  improvements  made  after  the  suit  in  eject- 
ment is  brought.^" 

The  statute  does  not  contemplate  that  the  expendi- 
ture made  by  a  defendant  for  improvements  shall  be 
refunded  to  him,  but  only  that  he  be  allowed  such  a  sum 
as  equals  the  extent  to  which  the  buildings  and  improve- 
ments have  increased  the  present  value  of  the  premises.*^ 

§32.  Proceeding's  to  determine  amount  of  compen- 
sation. 

In  all  actions  of  ejectment,  if  a  defendant  wishes  to 
avail  himself  of  the  right  to  compensation  for  buildings 
and  improvements,  he  may  file  a  claim  in  writing,  setting 
forth  the  character  of  the  occupation  and  the  time  thereof, 
and  a  request  that  the  jury  find  whether  the  premises 
have  been  actually  and  peaceably  occupied  by  him  or  the 
person  through  whom  he  claims  title,  and  the  time  of 
such  occupation,  and  determine  the  increased  value  of 
the  premises  by  reason  thereof.  A  copy  of  such  claim, 
with  notice  of  the  filing  thereof,  is  required  to  be  served 
on  the  plaintiff  or  his  attorney  at  least  ten  days  before 
the  first  day  of  the  term  at  which  the  cause  is  tried.  The 
plaintiff  may  then  file  a  request  in  writing  that  the  jury 
also  find  and  determine  what  would  have  been  the  value 
of  the  premises  at  the  time  of  the  trial,  if  no  buildings 
had  been  erected  or  improvements  made  or  waste  com- 

49  Paldi  v.  Paldi,  84  Mich.  346.  61  Sherman  v.  A.  P.  Cook  Co.,  98 

60  Cook  V.  Bertram,  86  Mich.  356;  Mich.    61;    Cleland    v.    Clarke,    123 

Van  Den  Brooks  v.  Correon,  48  Mich.  Mich.  179. 

283. 


§  32  Ejectment  559 

mitted.  A  true  copy  of  such  request,  with  notice  of 
filing,  must  be  served  on  the  defendant  or  his  attorney 
within  five  days  after  service  of  the  notice  of  claim  for 
compensation  for  improvements.  The  jury  in  all  cases 
in  which  the  above  matters  are  submitted  to  them  are 
required,  if  they  find  for  the  plaintiff,  also  to  find  and 
determine  by  their  verdict  upon  those  matters.®'^  The 
test  is  the  actual  relative  value  of  the  land  with  and 
without  the  improvements.  On  the  one  hand,  the  fact 
that  the  improvements  were  expensive  to  the  defendant 
and  are  of  peculiar  or  special  value  to  him  is  not  con- 
trolling, nor,  on  the  other  hand,  is  the  fact  that  the  im- 
provements are  not  adopted  to  the  use  to  which  the 
plaintiff  intends  to  put  the  premises.  The  question  is 
whether  and  how  much  the  actual  present  value  of  the 
premises  has  been  enhanced  by  the  improvements  for  the 
purposes  for  which  they  are  ordinarily  used.^' 

The  defendant  cannot  introduce  evidence  as  to  the 
value  of  improvements  unless  he  has  filed  his  claim," 
nor  the  plaintiff  of  the  value  of  the  premises,  unless  he 
has  filed  his  request."  It  would,  however,  be  permis- 
sible for  the  court  in  its  discretion  to  allow  a  party  to 
file  a  claim  or  request  nunc  pro  tunc,  if  the  other  party 
would  not  be  thereby  surprised,  or  if  he  is  offered  a  con- 
tinuance in  case  he  claims  surprise.*^  So,  also,  the  court 
may  permit  a  claim  or  request  to  be  amended,  where  an 
amendment  is  required  to  protect  the  substantial  rights 
of  a  party."''^ 

B2Jud.   Act,   ch.   29,   §45;    Comp.  66  Brooks    v.    Fairchild,    36    Mich. 

Laws  1915,   §  13212.  231 ;    Rawson    v.    Parsons,    6    Mich. 

63  Petit  V.  Flint,  etc.,  R.  Co.,  119       401. 

Mich.  492;   Lemerand  v.  Flint,  etc.,  66  Brooks    v.    Fairchild,    36    Mich. 

R.  Co.,  117  Mich.  309;   Robinson  v.      231. 

Batzer,  195  Mich.  235.  67  Baldwin  v.  Cullen,  51  Mich.  33. 

64  Newaygo    County    Mfg.    Co.    v. 
Echtinaw,  81  Mich.  416. 


560  Ejectment  §  33 

§  33.  Election  by  plaintiff  to  abandon  premises. 

If,  after  the  rendition  of  the  verdict,  the  plaintiff,  at 
the  same  or  the  next  subsequent  term  of  the  court,  makes 
his  election  on  record  to  abandon  the  premises  to  the 
defendant  at  the  value  estimated  by  the  jury,  or,  in  cases 
where  an  undivided  interest  is  recovered,  at  a  propor- 
tionate part  of  such  value,  judgment  will  be  rendered 
against  the  defendant  for  the  sum  so  estimated  by  the 
jury,  with  costs  of  suit,  where  the  recovery  is  of  an  en- 
tire interest,  and,  where  recovery  is  had  of  an  undivided 
interest,  for  a  proportionate  part  of  the  sum  estimated 
by  the  jury,  with  costs  of  suit.  The  judgment  will  be  a 
lien  upon  the  premises  in  question,  and  execution  may 
issue  and  be  levied  upon  the  premises,  which  may  be 
sold  by  virtue  thereof  in  the  same  manner  and  with  like 
effect  as  any  other  real  estate  of  the  defendant.^^ 

§  34.  Proceeding's    if   plaintiff    does    not    elect   to 

abandon  premises. 
If,  however,  the  plaintiff  does  not  elect  to  abandon  the 
premises  to  the  defendant,  he  must,  within  a  year  after 
the  rendition  of  the  judgment  for  the  recovery  of  the 
premises,  in  cases  of  a  recovery  of  an  entire  interest, 
pay  to  the  clerk  of  the  court,  for  the  use  of  the  defend- 
ant, such  sum  as  has  been  assessed  for  the  buildings  and 
improvements,  with  interest  thereon,  and,  in  cases  where 
a  recovery  of  an  undivided  interest  is  had,  a  proportion- 
ate part  of  such  sum  as  has  been  assessed  for  the  build- 
ings and  improvements,  with  interest  thereon.  No  writ 
of  possession  can  issue  nor  any  new  action  be  sustained 
for  the  land  or  undivided  interest,  as  the  case  may  be, 
until  such  sum  is  paid.     But  the  plaintiff's  taxed  costs 

68  Jud.   Act,  ch.   29,   §  46 ;    Comp.  cannot   elect   to   abandon  his   claim 

Laws  1915,  §  13213.  and    take    the    value    of    the    land. 

But  where  the  plaintiff's  right  to  Board  of  Sup'rs  of  Cass  County  v. 

a  parcel  of  land  is  confined  to  the  Banks,  44  Mich.  467. 
use  of  it  for  a  specific  purpose,  he 


§  35  Ejectment  561 

must  be  set  off  by  the  clerk  against  the  amount  of  the 
verdict  recovered  by  the  defendant  for  buildings  and  im- 
provements, and  where  the  amount  of  the  taxed  costs 
equals  or  exceeds  the  amount  of  the  verdict,  it  is  not 
necessary  for  the  plaintiff  to  make  any  payment  in  satis- 
faction of  it.  A  default  to  pay  the  clerk  as  required  will 
be  deemed  an  abandonment  of  all  claim  of  title  to  the 
premises  and  will  be  a  bar  to  the  recovery  thereof.^* 

The  year  within  which  the  plaintiff  may  pay  the  sum 
assessed  for  the  buildings  and  improvements  begins  to 
run  from  the  time  of  entering  final  judgment,  but  the 
running  of  the  time  is  suspended  pending  a  review  of 
the  case  on  writ  of  error.^® 

§  35.  Execution  for  plaintiff. 

In  the  action  of  ejectment,  if  the  plaintiff  recovers 
judgment,  he  is  entitled  to  execution,  usually  called  a 
''writ  of  possession,"  the  substantial  form  of  which  is 
prescribed  by  the  statute,  and  by  which  the  sheriff  is 

69  Jud.   Act,   ch.   29,    §47;    Comp.  election  once  made.    Miller  v.  Clark, 

Laws  1915,  §  13214;  Guild  v.  Kidd,  60  Mich.  162;  Eawson  v.  Parsons,  6 

48   Mich.   307;    Miller   v.    Clark,   60  Mich,   401.      See   also   McKenzie   v. 

Mich.    162;    Eawson    v.    Parsons,    6  A.  P.  Cook  Co.,  113  Mich.  452. 

Mich.  401.  Where   plaintiff   recovers  a  judg- 

Whcre  defendant  is  held  entitled  ment  for  the  value  of  the  property 

to   the    value   of    his   improvements,  instead  of  for  possession,  he  cannot 

judgment  for  plaintiff  in  the  ordi-  have    the    error    corrected    in    the 

nary    form,    providing   that    his    de-  supreme   court   by   its   giving   judg- 

fault  to  pay  the  assessment  for  im-  ment  for  the  recovery  of  possession, 

provements  shall  be  deemed  equiva-  Bertram  v.  Cook,  44  Mich.  396. 

lent  to  an  abandonment,  sufficiently  Where  only  part  of  defendants  are 

protects  defendant.     Guild  v.  Kidd,  entitled  to  recover  for  improvements, 

48  Mich.  307.  the  fact  that  the  judgment  in  form 

Plaintiff  has  his  election,  after  an  allows    for    improvements    in    favor 

estimation   of  the   land   without   the  of  all  defendants  is  not  ground  for 

improvements,  to  take  judgment  for  reversal   on  the   exception  of  plain- 

the  recovery  of  the  premises,  subject  tiff.       Boucher     v.     Trembley,     140 

to  the  obligation  to  pay  for  the  im-  Mich.  352. 

provements;    or,    for    the    value    as  60  Clark  v.  Green,  62  Mich.   355; 

estimated  independently  of  the  im-  Boyce   v.   Judkins,  79   Mich.   154. 
provements;   but  he  is  bound  by  his 
1  Abbott— 36 


562  Ejectment  §  35 

commanded  without  delay  to  deliver  to  the  plaintiff 
possession  of  the  premises,  with  the  appurtenances,  and 
to  collect  the  costs  of  the  plaintiff,  if  any  have  been 
awarded.^^  Notice  of  the  writ  need  not  be  filed,  and  tax- 
ation of  costs  is  not  a  condition  precedent.^'' 

By  statute,  plaintiff  may  include  in  the  writ  of  posses- 
sion an  execution  against  the  property  of  the  defendant 
to  collect  the  costs  or  damages  due,  in  the  same  cases  in 
which  he  would  be  authorized  to  issue  such  execution 
separately.^^ 

Form  of  Writ  of  Possession  in  Ejectment  with  Fieri  Facias  for  Costs 
In  the  Name  of  the  People  of  the  State  of  Michigan. 

To  the  Sheriff  of  the  County  of ,  Greeting: 

Whereas  A.  B.,  plaintiff,  has  lately  in  our  circuit  court  for  the  county 
of ,  by  the  judgment  of  such  court,  recovered  against  C.  D.,  defend- 
ant, the  following  described  premises,  to  wit:  (Describe  the  premises), 
which  said  premises  have  been  and  still  are  unjustly  withheld  from  the  said 
plaintiff  by  the  said  defendant,  whereof  the  said  defendant  is  convicted,  as 
appears  to  us  of  record;  and  inasmuch  as  it  is  adjudged  in  our  said  court 
that  the  said  plaintiff  have  execution  upon  the  said  judgment  according 
to  the  force  and  effect  of  his  said  recovery,  therefore  we  command  you  that 
without  delay  you  deliver  to  the  said  plaintiff  possession  of  the  said  prem- 
ises so  recovered,  with  the  appurtenances ;  and  we  further  command  you  that, 
of  the  goods  and  chattels  of  the  said  defendant  in  your  county,  you  cause 

to  be  made   dollars,  which  in  our  said  court  were  adjudged  to  the 

said  plaintiff  for  the  damages  which  he  had  sustained,  as  well  by  reason  of 
the  premises  as  for  his  costs  and  charges  by  him  about  his  suit  in  that 
behalf  expended,  whereof  the  said  defendant  is  also  convicted,  as  further 
appears  to  us  of  record;  and,  if  suflScient  goods  and  chattels  of  the  said 
defendant  cannot  be  found  within  your  county,  that  then  you  cause  the 
damages  and  costs  aforesaid  to  be  made  of  the  real  estate  of  the  said  de- 
fendant within   your  county,   and  have   you   that  money  before   our  said 

court  at ,  on ,  to  render  unto  the  said  plaintiff  for  his  damages, 

costs  and  charges  aforesaid,  together  with  your  certificate  of  the  manner  in 
which  you  shall  have  executed  this  writ;  and  have  you  then  and  there  this 
writ. 

Witness,  etc. 

eijud.   Act,   ch.   29,    §27;    Comp.  63  Jud.   Act,   ch.   33,    §15;    Comp. 

Laws  1915,   §  13194.  Laws   1915,   §  13372. 

62  Dawson     v.     Chippewa     Circuit 
Judge,  127  Mich.  328. 


Election  of  Remedies  563 

Form  of  Return  of  Writ  of  Possession 

State  of  Michigan,  1 
County  of   ( 

I  hereby  certify  and  return  that,  by  virtue  of  the  within  writ,  I  did,  on 

the day  of ,  A.  D ,  deliver  possession  of  the  premises 

within  described,  with  the  appurtenances,  to  the  within-named  A.  B.,  as  I 
am  within  commanded. 
Dated,  etc. 

S.  T., 
Sheriff. 

§  36.  Execution  for  defendant. 

Upon  a  judgment  against  the  plaintiff,  or  one  or  more 
plaintiffs,  in  cases  where  they  are  liable  for  costs,  execu- 
tion for  the  collection  of  the  same  may  be  issued  as  on 
judgments  in  personal  actions.^* 

§  37.  New  trials. 

New  trials  in  ejectment,  as  matter  of  course,  are  abol- 
ished by  the  Judicature  Act,^®  except  in  so  far  as  the  right 
to  set  aside  judgments  by  default  under  certain  circum- 
stances is  a  matter  of  right.^^  New  trials  for  cause  are 
granted  ' '  for  the  same  reasons,  and  in  the  same  manner, 
as  in  personal  actions."^' 

ELECTION   OF   REMEDIES 

An  election  of  remedies  is  defined  as  the  choosing  be- 
tween two  or  more  different  and  coexisting  modes  of  pro- 
cedure and  relief  allowed  by  law  on  the  same  state  of 
facts.^'  It  is  an  application  of  the  law  of  estoppel  on 
the  theory  that  a  party  cannot,  in  the  assertion  or  prose- 
cution of  his  rights,  occupy  inconsistent  positions.*® 
When  a  person  has  a  right  to  choose  one  of  two  modes 

64Jud.   Act,   ch.    29,   §28;  Comp.  67  Jud.   Act,   ch.    29,    §30;    Comp. 

Laws  1915,  §  13195.  Laws  1915,  §  13197. 

65  Jud.  Act,   ch.   29,   §30;  Comp,  68  See    Thompson    v.    Howard,    31 
Laws  1915,  §  13197.                                   Mich.  309. 

66  See   §  21,  ante.  69  See  note  in  13  L.  R.  A.  91. 


564  Election  of  Remedies 

of  redress,  and  the  two  are  so  inconsistent  that  the  as- 
sertion of  one  involves  the  negation  or  repudiation  of 
the  other,  his  deliberate  and  settled  choice  of  one,  with 
knowledge,  or  means  of  knowledge  of  such  facts  as  would 
authorize  a  resort  to  either,  will  preclude  him  thereafter 
from  going  back  and  electing  anew.'^°  Nor  can  a  plaintiff 
in  any  case  make  a  new  election  while  the  first  action  is 
pending,  or  after  it  has  been  determined  on  the  merits. 
One  having  the  choice  between  two  inconsistent  reme- 
dies is  bound  by  an  election,  and  suit  brought  upon  one 
precludes  a  subsequent  resort  to  the  other.''^^ 

However,  the  demands  must  be  inconsistent  in  order 
to  make  the  election  of  one  right  of  action  an  estoppel 
against  the  subsequent  assertion  of  the  other,  unless 
satisfaction  has  been  obtained  by  judgment,''^  and  there 
is  no  inconsistency  merely  because  the  forms  of  action 
are  different.'^'  There  may  be  an  election  of  remedies 
based  on  contract  as  well  as  an  election  as  between  the 
right  to  sue  ex  contractu  and  ex  delicto.''*  The  election 
to  be  binding  must  be  with  knowledge  of  the  facts.''^' 

A  recovery  in  an  action  on  a  quantum  meruit  for  serv- 
ices rendered  under  a  contract  is  an  election  of  remedies 
so  as  to  preclude  a  subsequent  action  for  breach  of  ex- 
press contract.'^  But  it  is  held  that  a  vendor  does  not 
elect  his  remedy  by  bringing  assumpsit  on  the  contract 
and  proceeding  to  judgment  therein,  so  as  to  preclude  his 
resort  to  replevin.''     There  is  a  difference  between  an 

70  Black  V.  Miller,  75  Mich.  723 ;  73  Mintz  v.  Jacob,  163  Mich.  280, 
Thompson  v.  Howard,  31  Mich.  309.      which  well  states  and  illustrates  the 

71  McDonald  v.  Young,  198  Mich.      doctrine  of  election. 

620;     McDonald     v.     Preston    Nat.  74  Mintz  v.  Jacob,  163  Mich.  280. 

Bank,    111   Mich.    649;    McLaughlin  75  Hogue  v.  Wells,  180  Mich.  19. 

V.  Austin,  104  Mich.  489.  76  La  Vasser  v.   Chesbrough  Lum- 

72Humiston,    Keeling    &     Co.    v.  ber  Co.,  190  Mich.  403. 

Bridgman,   195   Mich.   82;    Mintz   v.  77  Canadian     Typograph     Co.     v. 

Jacob,  163  Mich.  280;  Feldkamp  v.  Macgurn,  119  Mich.  533. 
Ernst,  177  Mich.  550. 


Election  of  Remedies  565 

election  of  remedies  and  a  mistake  of  remedy/*  and 
where  plaintiff  mistakes  his  remedy  and  attempts  to  en- 
force it  in  an  inappropriate  action,  wherein  no  recovery 
can  be  had,  he  is  not  precluded  thereby  from  resorting 
to  his  proper  remedy.'''^  There  is  no  choice  between  two 
remedies  where  neither  remedy  is  open  to  plaintiff,  and 
hence  an  ineffectual  attempt  to  recover  in  assumpsit  a 
debt  not  due  is  not  a  waiver  of  a  future  tort.*"  The  stat- 
ute when  it  gives  a  choice  of  remedies  will  not  allow 
courts  to  treat  one  as  identical  with  the  other,*^  but  plain- 
tiff is  bound  by  his  election.*'^  For  instance,  where 
plaintiff  has  a  choice  between  two  or  more  forms  of  ac- 
tion, he  waives  the  other  remedies  and  must  be  content 
with  the  rule  of  damages  applicable  to  the  form  of  ac- 
tion chosen.**  The  commencement  of  a  suit  constitutes 
an  election  although  it  does  not  proceed  to  judgment.** 
The  fact  that  the  first  action  was  brought  in  a  court 
which  did  not  have  jurisdiction  does  not  destroy  the 
effect  of  the  election.*^  The  election  extends  beyond  the 
immediate  parties,  and  binds  all  who  claim  under  or  who 
are  connected  with  them  as  privies.*^  It  has  been  said 
that  the  duty  is  imposed  on  courts  to  see  that  defendant 
is  not  prejudiced  by  one  form  of  action  being  chosen 
rather  than  another.*''^ 

The  right  to  elect,  in  certain  cases,  to  waive  a  tort  and 

78  McLaughlin  v.  Austin,  104  83  Anderson  v.  Besser,  131  Mich. 
Mich.  489.  481. 

79  Kratzmer  v.  Detroit  Lumber  84  Thomas  v.  Watt,  104  Mich.  201. 
Co.,  195  Mich.  556,  570;  Sullivan  v.  But  see  Lewis  J.  Selznick  Enter- 
Ross'  Estate,  113  Mich.  311;  Shan-  prises  v.  Harry  I.  Garson  Produc- 
ahan  v.  Coburn,  128  Mich.  692;  tions,  202  Mich.  Ill,  holding  that 
First  Nat.  Bank  v.  Sweet,  136  Mich.  the  mere  commencement  of  an  ac- 
615;  Holmes  v.  Smith,  149  Mich.  tion  at  law  does  not  constitute  an 
327;    Glover  v.  Radford,  120  Mich.  election   not  to  sue  in  equity. 

542.  86  Nield   v.   Burton,   49   Mich.   53. 

80  Bryant  v.  Kenyon,  123  Mich.  86  Rowley  v.  Towsley,  53  Mich. 
151.                                                                   329. 

81  Christy  v.  Farlin,  49  Mich.  319.  87  Chandler    v.    Childs,    42    Mich. 

82  Christy  v.  Farlin,  49  Mich.  319.       128. 


566  Election  of  Remedies 

bring  assumpsit,  has  already  been  stated,®^  and  in  later 
articles  the  right  to  elect  between  replevin  and  an  action 
for  conversion  is  noted.'®  The  fact  that  a  statute  is  en- 
acted giving  a  right  of  action  different  in  form  from  that 
at  the  common  law  does  not  abrogate  the  right  to  pro- 
ceed at  common  law  for  the  same  cause,  unless  there  is 
some  special  provision  in  the  statute  to  that  effect.®**  Of 
course  the  remedy  provided  for  by  statute  may  be  exclu- 
sive.®^ If  plaintiff  has  an  option  to  sue  either  in  a  fed- 
eral court  or  in  a  state  court,  the  bringing  and  prosecu- 
tion of  an  action  in  one  court  precludes  a  subsequent 
resort  to  the  other  court.®* 

ELECTIONS 

Elections  between  counts  in  the  declaration  (see 
Pleading),  between  articles  exempt  from  levy  (see  Ex- 
emptions), as  to  the  judgment  in  ejectment  (see  Eject- 
ment) or  replevin  (see  Replevin),  as  to  the  joinder  of 
tort  feasors  (see  Parties),  as  between  case  made  and  bill 
of  exceptions  (see  Case  Made)  are  all  treated  of  in  other 
articles  in  this  work.  Service  of  process  and  the  priv- 
ilege from  arrest  on  election  day  (see  Commencement  of 
Actions)  is  regulated  by  statute. 

EMPLOYEES 

See  Workmen  's  Compensation  Act. 

ENTRY 

See  Judgments;  Motions,  etc. 

88  See  Assumpsit.  distraint  of  hog  damage  feasant  was 

89  See  Replevin  ;  Trover.  exclusive. 

90  Bellant  v.  Brown,  78  Mich.  294.  92  Michigan     R.      Commission     v. 

91  Spiegel  v.  Straw,  196  Mich.  Detroit  &  M.  R.  Co.,  182  Mich.  234. 
576,   holding   statutory   remedy   for 


Error,  Writ  of  567 

EQUITY 

See  Actions;  Limitation  of  Actions;  Mandamus;  Ejectment;  Execu- 
tions; Nuisances;  Waste. 

EQUITY   OF  REDEMPTION 

See  Executions. 

ERROR,  WRIT  OF 

§    1.  Definition  and  nature  of. 

§    2.  From  what  court  writ  may  issue. 

§    3.  To  what  courts  writ  may  issue. 

§    4.  Issuance  as  matter  of  course. 

§    5.  Writ  as  continuance  of  original  suit. 

§    6.  Scope  of  writ  and  when  proper. 

§    7.  "Final"  judgments  or  determinations. 

§    8.  Proceedings  according  to  the  course  of  the  common  law. 

§    9.  Determination  of  probate  appeals. 

§  10.  Determination  of  appeals  from  justices  of  the  peace. 

§  11.  Review  of  questions  of  fact. 

§  11a.  Agreement  that  decision  of  lower  court  shall  be  final. 

§  12.  By  and  against  whom  error  may  or  should  be  brought. 

§  13.  Notice  of  issuance  of  writ  where  party  dies  after  judgment. 

§  14.  Proceedings  in  case  part  of  several  parties  desire  to  bring  error. 

§  15.  Time  when  writ  must  be  taken  out. 

§  16.  How  writ  obtained. 

§  17.  Form  of  writ. 

§  18.  Notice  of  issuance. 

§  19.  Return  of  writ. 

§  20.  Extending  time  for  return. 

§  21.  Bond  for  stay  of  proceedings. 

§  22.  How  sufficiency  of  sureties  and  penalty  of  bond  determined. 

§  23.  Additional  bond. 

§  24.  Proceedings  upon  filing  bond. 

§  25.  Staying  proceedings  after  return  of  writ. 
§  26.  Entitling  cause. 
§  27.  Record. 

§28.  Amendment. 

§  29.  Assignments  of  error. 

§  30.  Notice  of  hearing. 

§  31.  Procuring  cause  to  be  placed  on  calendar. 

§  32.  Dismissal  of  writ. 

§  33.  For  failure  to  return  writ  or  assign  errors. 

§  .^4.  Time  for  motion. 

8  35.  Motion  papers  and  notice  of  motion. 


568  Error,  Writ  of  §  1 

§  36.  Calendar  practice. 

§  37.  Effect  of  dismissal. 

§  38.  Eeinstatement  after  dismissal. 

§  39.  Voluntary  dismissal  of  writ. 
§  40.  Who  may  allege  error. 
§  41.  Consolidation  of  cases. 
§  42.  Scope  of  review. 

§  43.  Interlocutory  orders. 

§  44.  Discretion  of  lower  court. 

§  45.  Questions  of  fact. 

§  46.  Questions  not  urged  in  the  trial  or  lower  court  or  at  the  trial. 

§  47.  Rulings  not  excepted  to. 

§  48.  Eeview  as  limited  by  the  record. 

§  49.  Eefusal  of  new  trial. 

§  50.  Where  place  where  error  occurs  in  record  not  pointed  out. 

§  51.  Questions  not  necessary  to  be  decided. 

§  52.  Constitutional  questions. 

§  53.  Eeview  on  second  or  further  writ. 

§  54.  Presumptions  in  support  of  judgment. 

§  55.  For  what  errors  judgment  will  be  reversed. 

§  56.  Error  as  harmless  or  prejudicial. 

§  57.  Judgment  in  supreme  court. 

§  58.  When  court  will  order  new  trial  on  reversal. 

§  59.  Eeversal  in  part. 

§  60.  Costs. 

§  61.  Costs  as  discretionary. 

§  62.  When  judgment  reversed. 

§  63.  When  judgment  aflSrmed. 

§  64.  Damages  for  delay  and  vexation. 

§  65.  On  dismissal. 

§  66.  Costs  on  rehearing,  motion  costs,  items  of  costs,  and  taxation  of 

costs. 
§  67.  Procedure  after  aflSrmance  or  reversal. 

Cross-References:  Bill  of  Exceptions;  Case  Made;  Supreme  Couht; 
Judges;  Habeas  Corpus;  Summary  Proceedings;  Costs;  Assignments 
OF  Error;  Briefs;  Clerks  of  Court;  Eules  of  Court. 

§  1.  Definition  and  nature  of. 

In  England,  a  writ  of  error,  like  an  original  writ,  was 
sued  out  of  chancery,  directed  to  the  judges  of  the  court 
in  which  a  judgment  had  been  given,  and  commanding 
them,  in  the  name  of  the  king,  in  some  cases  themselves 
to  examine  the  record,  in  others,  to  send  it  to  another 
court  of  appellate  jurisdiction  to  be  examined,  in  order 
that  some   alleged   error  in  the  proceedings  might  be 


§  1  Error,  Writ  of  569 

corrected.^  When  the  writ  so  issued  commanded  the 
judges  by  whom  the  judgment  had  been  rendered  to  ex- 
amine the  records  themselves,  it  was  called  a  ''writ  of 
error  coram  nobis,"  if  directed  to  the  King's  Bench,  and 
a  "writ  of  error  coram  vobis,"  if  directed  to  the  Com- 
mon Pleas;  but,  when  it  commanded  the  judges  of  the 
court  in  which  the  judgment  had  been  rendered  to  send 
the  record  to  another  court  of  appellate  jurisdiction  to 
be  examined,  it  was  called  simply  a  "writ  of  error. "^ 

The  writ  of  error  coram  nobis  to  the  King's  Bench 
was  so  called  because  the  record  and  proceedings  were 
stated  in  the  writ  to  remain  before  us  (coram  nobis),  that 
is,  before  the  king,  in  whose  name  the  writ  issued,  and 
who,  by  a  fiction  of  law,  was  supposed  to  preside  in  per- 
son in  that  court;  while  the  writ  coram  vobis  to  the  com- 
mon pleas  was  so  called  because  the  record  and  proceed- 
ings were  stated  in  the  writ  to  remain  before  you  (coram 
vobis),  that  is,  the  king's  justices.  The  writs  coram 
nobis  and  coram  vobis  contained  no  certiorari  clause,  for 
the  record  was  not  to  be  certified  to  another  court,  but 
remained  in  the  court  rendering  the  judgment  com- 
plained of.  They  were  in  effect  and  nature  a  commission 
merely  to  the  court  to  correct  error.  The  writ  of  error 
requiring  the  record  to  be  certified  to  an  appellate  court 
contained  a  certiorari  clause  for  that  purpose,  and,  like 
the  writs  coram  nobis  and  coram  vobis,  was  a  commis- 
sion to  the  court  to  examine  the  record  and  proceedings 
and  to  correct  the  errors  alleged  to  exist  in  them,  if  any 
be  found.' 

The  writ  of  error  was  applicable  only  where  the  al- 
leged error  was  one  of  law  and  could  not  be  used  to  at- 
tain the  correction  of  an  error  in  a  matter  of  fact.    The 

ISteph.    PI.    142;    2    Tidd's    Pr.  2  Steph.  PI.  142;   Teller  v.  Weth- 

1134.     At  common  law,  the  writ  of  erell,  G  Mich.  46. 

error  is  an  original  writ.  Jaques  8  Teller  v.  Wetherell,  6  Mich.  46. 
V.  Caesar,  2  Saund.  100. 


570  Ekror.  Writ  of  §  1 

writs  coram  nobis  and  coram  vobis,  on  the  other  hand, 
effecting  a  review  of  the  record  and  proceedings  by  the 
judges  of  the  court  in  which  the  judgment  was  ren- 
dered, were  not  at  all  applicable  for  the  correction  of 
errors  of  law,  but  only  where  the  alleged  error  involved 
a  matter  of  fact.* 

Even  where  the  error  alleged  was  one  of  fact,  the  writ 
coram  nobis  or  coram  vobis  was  not,  in  all  cases,  capable 
of  attaining  a  correction  of  it.  It  is  elsewhere  stated  how 
conclusive  is  the  verdict  of  a  jury  in  the  decision  of  ques- 
tions of  fact.  When  an  issue  of  fact  has  been  so  deter- 
mined, the  decision  is  final  and  indisputable  by  the  par- 
ties and  their  privies,  unless  the  same  is  set  aside  either 
in  the  trial  court  on  motion  for  a  new  trial  or  by  the  su- 
preme court  on  error  assigned  on  the  denial  of  such  mo- 
tion by  the  trial  court.  If,  therefore,  an  issue  of  fact  has 
been  wrongly  decided  by  a  jury,  such  wrongful  decision 
does  not  constitute  an  error  in  fact  in  the  sense  in  which 
that  term  is  used  in  the  statement  that  the  writ  coram 
nobis  or  coram  vobis  was  applicable  for  the  correction  of 
errors  of  fact.  But  there  are  certain  facts  which  affect 
the  validity  and  regularity  of  the  legal  decision  itself, 
such  as  the  defendant,  while  under  age,  having  appeared 
in  the  suit  by  attorney  and  not  by  guardian,  or  the  plain- 
tiff or  defendant  having  died  before  the  suit  was  com- 
menced. To  such  cases,  the  writ  coram  nobis  or  coram 
vobis  applied,  because,  as  it  has  been  said,  the  error  in 
fact  is  not  the  error  of  the  judges  and  reversing  the 
judgment  because  of  it  is  not  reversing  their  own  judg- 
ment.* 

§  2.  From  what  court  writ  may  issue. 

The  writ  can  issue  only  from  the  supreme  court.  It 
cannot  issue  from  a  circuit  court.® 

4Steph.   PI.    142;    3   Cooley's   Bl.  6  Stcph.  PI.  143. 

Comm.  406.  6  Teller  v.  Wetherell,  6  Mich.  46. 


§  4  Error,  Writ  of  571 

§  3.  To  what  courts  writ  may  issue. 

The  writ  may  be  issued  only  to  courts  of  record,''^  and 
furthermore  only  to  courts  of  record  proceeding  accord- 
ing to  the  course  of  the  common  law.®  It  follows  that 
the  writ  cannot  be  issued  to  review  the  proceedings  of  a 
justice  of  the  peace  except  in  so  far  as  an  indirect  review 
may  be  had  after  an  appeal  to  the  circuit  court  or  cer- 
tiorari from  the  circuit  court.®  So  proceedings  of  the 
probate  court,  not  being  according  to  the  course  of  the 
common  law,  cannot  be  reviewed,  except  in  some  cases 
after  an  appeal  to  the  circuit  court  in  which  case  the  re- 
view is  really  of  the  decision  of  the  circuit  court. ^°  Like- 
wise the  writ  cannot  issue  to  a  court  of  equity. 

§  4.  Issuance  as  matter  of  course. 

The  Judicature  Act  provides  that  writs  of  error,  upon 
any  final  judgment  or  determination,  may  issue  of  course, 
out  of  the  supreme  court,  in  vacation  as  well  as  in  term.^"* 
In  1917  it  was  provided,  by  an  amendment  of  the  Judi- 
cature Act,  that  the  writ  should  issue  as  of  course  only 
where  the  judgment  *' exceeds  in  amount  five  hundred 
dollars."  In  all  other  cases  the  writ  might  ''issue  in  the 
discretion  of  the  supreme  court  upon  proper  applica- 
tion."" The  amendment  of  1917  was  held  to  apply  to 
judgments  rendered  before  it  went  into  effect,^^  but  was 

7  Fletcher  v.  Clark,  39  Mich.  374.      by   the  jury,   to   allow   the   writ   of 

8  See  §  8,  post.  error  to  issue  as  a  matter  of  course 

9  See  §  10,  post.  upon  application  made.     In  view  of 

10  See  §  9,  post.  the    fact    that    this    case    has    been 
"Where  a  verdict  of  no  cause  of      fully  presented     *     *     *     we  have 

action  results,  it  is  necessary  to  concluded  to  allow  the  writ  nunc 
make  the  application  for  an  allow-  pro  tunc."  Albrecht  v.  St.  Hed- 
ance  of  the  writ  in  accordance  with  wig's,  etc.,  Society,  205  Mich.  395. 
the  express  language  of  the  statute.  lOa  Jud.  Act,  ch.  50,  §  1 ;  Comp. 
However,  it  has  been  the  practice  of  Laws  1915,  §  13736. 
the  court,  where  the  ad  damnum  H  Pub.  Acts  1917,  No.  172. 
clause  of  the  declaration  shows  a  12  j.  F.  Hartz  Co.  v.  Lukaszcew- 
claim  in  excess  of  $500  and  a  ver-  ski,  200  Mich.  230;  Miller  v.  John- 
diet  of  no  cause  of  action  is  found  son,  201  Mich.  535. 


572  Error,  Writ  of  §  4 

repealed  in  1919  ^^*  so  as  to  leave  the  statute  exactly  as 
it  was  before  the  1917  amendment. 

§  5.  Writ  as  continuance  of  original  suit. 

In  this  state,  the  writ  is  regarded  as  a  continuation 
of  the  original  suit  and  not  as  a  new  suit.^^  At  common 
law  and  in  many  of  the  states,  however,  the  writ  is  con- 
sidered as  the  commencement  of  a  new  suit." 

§  6.  Scope  of  writ  and  when  proper. 

The  writ  lies  to  review  "any  final  judgment  or  deter- 
mination, ' '  "  provided  the  judgment  or  determination 
is  that  of  a  court  of  record,^®  and  in  a  proceeding  accord- 
ing to  the  course  of  the  common  law.^'  While  it  issues  as 
a  matter  of  course,"  yet  jurisdiction  cannot  be  con- 
ferred by  consent  or  inadvertence,^'  and  hence  if  the 
judgment  or  determination  is  one  not  reviewable  by 
writ  of  error  the  writ  will  be  dismissed,^"  on 
the  court's  own  motion  if  a  party  does  not  move  to  dis- 
miss.^^  The  writ  lies  to  review  an  order  dismissing  any 
case  on  motion,''^  or  denying  plaintiff's  motion  for  judg- 
ment on  the  ground  that  the  suit  had  been  discontinued 
by  stipulation,^'  or  denying  defendant's  motion  to  quash 

12a  Pub.  Acts  1919,  No.  14.  16  See  §  3,  ante. 

13  Baumgarth  v.  Firemen 's  Fund  17  See   §  8,  post. 

Ins.  Co.,  159  Mich.  207;  McLean  v.  18  See   §4,  ante. 

Isbell,  44  Mich.  129.  19  J.  F.  Hartz  Co.  v.  Lukaszcewski, 

14Lippitt    V.    Bidwell,    87    Conn.  200    Mich.    230     (under    Pub.    Acts 

608;      McCormick     v.     McClure,     6  1917,    No.    172);     Bolton    v.    Cum- 

Blackf.    (Ind.)    466;    Turner  v.   Ed-  miiigs,    200    Mich.    234.      See    also 

monston,    210    Mo.    411;    Pierce    v.  Courts. 

Stinde,    11    Mo,    App.    364;     Fitz-  20  See   §32,  post. 

Patrick  v.  Graham,  119  Fed.  353.  21  See   §  32,  post. 

IB  Jud.    Act,    ch.    50,    §  1 ;    Comp.  22  McCombs  v.  Johnson,  47  Mich. 

Laws  1915,  §  13736,  as  amended  by  592. 

Pub.  Acts  1919,  No.  14  which,  how-  23  Carpenter    v.    Myers,    90    Mich, 

ever,  merely  changes  the  law  as  to  209. 
the  issuance  of  the  writ  as  a  mat- 
ter of  course. 


§  6  Error,  Writ  of  573 

an  attachment  when  defendant  takes  no  further  part  in 
the  proceedings  and  allows  judgment  to  be  entered 
against  him  by  default,^*  or  quashing  a  capias  ad  respon- 
dendum,^* or  dismissing  a  writ  of  replevin  and  quashing 
all  proceedings  with  costs  on  motion,^^  or  dismissing  a 
writ  of  certiorari  to  a  circuit  court  commissioner  for  the 
review  of  proceedings  under  the  statute  to  recover  pos- 
session of  lands,^'''  or  transferring  a  case  pending  in  the 
circuit  court  to  the  federal  court ;  ^®  to  review  the  de- 
termination of  the  circuit  court  in  proceedings  upon  an 
information  filed  in  the  circuit  court  by  a  private  relator 
to  try  the  title  to  an  office ;  ^®  to  review  the  judgment  of 
the  circuit  court  in  summary  proceedings  to  recover  the 
possession  of  lands  on  appeal  from  a  circuit  court  com- 
missioner;'" to  review  the  action  of  the  circuit  court  in 
affirming  or  reversing  on  statutory  certiorari  the  judg- 
ment of  a  justice  of  the  peace,  and  in  all  other  cases  of 
this  nature.  It  is  the  only  way  to  review  a  judgment 
that  a  party  recover  his  costs  to  be  taxed.'^  Error  also 
lies  on  a  judgment  upon  the  award  of  arbitrators  under 
the  statute,  and  upon  an  order  of  the  circuit  court  vacat- 
ing such  award.'^ 

Taxation  or  retaxation  of  costs  cannot  be  reviewed  on 
error,  since  not  a  judicial  action. '^  And  proceedings 
under  the  statute  on  appeal  to  the  circuit  court  from  an 

24  Pierce  V.  Johnson,  93  Mich.  125.  Judge,    136    Mich.    658;    Luther   v. 

25  Cattcrmole  v.  Ionia  Circuit  Kent  Circuit  Judge,  151  Mich.  71. 
Judge,  136  Mich.  274.  See  also  But  to  review  the  action  of  the 
Baxter  v.  Woodward,  191  Mich.  379.  court  in  taxing  costs,  mandamus  is 

26  Jewell  V.  Lamoreaux,  30  Mich.  the  proper  remedy.  Abbott  v. 
155 ;  Cages  V.  Sanilac  Circuit  Judge,  Mathews,  26  Mich.  176;  Stebbins 
122  Mich.  490.  v.  Field,  43  Mich.  336. 

27Eobens  V.  Videto,  33  Mich.  240.  82  Jud.   Act,   ch.   45,   §20;    Comp. 

28  Crane  v.  Reeder,  28  Mich.  527.  Laws      1915,       §  13665.       Compare 

29  Vrooman    v.    Mitehie,   69    Mich.  Cooper  v.   Andrews,   44   Mich.   94. 
42.  33  Abbott    v.    Mathews,    26    Mich. 

30  Parker  v.  Copland,  4  Mich.  528.  176. 

31  Schmidt      v.      Wayne      Circuit 


574  Error,  Writ  of  §  6 

assessment  of  taxes  made  by  the  auditor  general,  are  not 
judicial,  so  as  to  be  reviewable  on  error.'*  But  alleged 
error  in  rendering  judgment  for  costs  may  be  reviewed 
by  writ  of  eiTor.'* 

A  judgment,  order  or  decree,  entered  by  consent,  will 
not  support  a  writ  of  error.®® 

Jurisdiction  cannot  be  conferred  by  consent  of  the 
parties,®'  nor  can  it  be  abridged  by  agreement  of  the  par- 
ties whereby  they  seek  to  limit  the  principle  of  decision 
and  exclude  legal  considerations.®' 

§7.  "Final"  judgments  or  determinations. 

A  writ  of  error  issues  of  course  to  review  a  final  judg- 
ment or  determination  of  a  court  of  record  in  a  proceed- 
ing according  to  the  course  of  the  common  law.®*  A  final 
judgment  is  contra-distinguished  from  an  interlocutory 
judgment,  which  concerns  some  intermediate  matter  or 
issue,  and  is  one  which  puts  an  end  to  the  action  by  de- 
claring that  the  plaintiff  has  or  has  not  entitled  himself 
to  recover  the  remedy  for  which  he  sues.*®  It  is  not 
necessary  that  a  judgment  should  be  a  final  determina- 
tion of  the  rights  of  the  parties  to  authorize  a  writ  of 
error.  It  is  enough  if  it  determine  the  particular  suit.*^ 
The  writ  is  never  employed  merely  to  bring  up  interlocu- 

84  Auditor     General     v.     Pullman  Holbrook    v.    Cook,    5    Mich.    225; 

Palace  Car  Co.,  34  Mich.  59.  Steel  v.  Clinton,  133  Mich.  695;  In 

35  Luther  v.  Kent  Circuit  Judge,  re  Hicks,  20  Mich.  129 ;  Perry  v. 
151  Mich.  71.  Church,  107  Mich.  480;   Delaney  v. 

36  Chapin  v.  Perrin,  46  Mich.  130 ;  Michigan,  etc.,  Lumber  Co.,  144 
Brick  V.  Brick,  65  Mich.  230;  Owen  Mich.  351;  Bancroft  v.  Eegents  of 
V.  Yale,  75  Mich.  256.  University,  192  Mich.   168;    Backus 

37  See  Courts,  and  see  supra,  note  v.  Trumbull  Motor  Car  Co.,  194 
19.  Mich.   199. 

38  Watts  V.  Tittabawasee  Boom  The  fact  that  the  judgment  has 
Co.,  47  Mich.  540.  been  paid  or  otherwise  satisfied  does 

39  Jud.    Act,   ch.    50,    §  1 ;    Comp.  not  preclude  the  issuance  of  a  writ 
Laws  1915,  §  13736,  as  amended  by  of  error  to  obtain  its  reversal.   Wat- 
Pub.   Acts   1919,   No.   14;    Brady  v.  son  v.  Kane,  31  Mich.  61. 
Toledo,  etc.,  R.   Co.,  73   Mich.  457;  40  3  Cooley's  Bl.  Comm.  398. 
Painter  v.  Lebanon,  178  Mich.  47;  41  In  re  Hicks,  20  Mich.  129. 


§  7  Error,  Writ  of  575 

tory  decisions  or  discretionary  orders  made  pending  the 
litigation.*^  An  order  which  puts  an  end  to  a  suit  is  a 
final  judgment  reviewable  by  error."  Among  the  ad- 
judications held  final  so  as  to  be  reviewable  are  the  fol- 
lowing: Decision  of  the  circuit  judge  dismissing  a  writ 
of  replevin  and  quashing  all  proceedings  with  costs,  on  a 
motion;"  order  setting  aside  a  capias  ad  respondendum 
and  directing  judgment  for  defendant;"  judgment  sub- 
jecting a  respondent  in  mandamus  to  liability  to  pay 
money  or  be  imprisoned  for  contempt  for  failure  to  obey 
the  writ;*^  judgment  directing  the  removal  of  a  nuis- 
ance;*''^ order  denying  the  motion  of  plaintiff's  attorney 
for  judgment  on  the  ground  that  the  case  was  discon- 
tinued by  a  stipulation ; "  order  quashing  a  writ  of  gar- 
nishment and  relieving  the  garnishee  from  further  liabil- 
ity with  costs  to  defendant ; "  order  of  the  circuit  court 
dismissing  an  appeal  taken  in  relator's  name  from  the 
probate  court  on  the  ground  that  there  was  not  a  suffi- 
cient showing  of  authority  to  take  the  appeal."®  On  the 
other  hand,  the  following  have  been  held  not  final  so  as 

42  Holbrook  v.  Cook,  5  Mich.  225 ;  Error  lies  where  an  action  of 
Polhemus  v.  Ann  Arbor  Sav.  Bank,  trover  has  been  dismissed  for  want 
27  Mich.  44;  Clarke  v.  Bay  Circuit  of  jurisdiction,  and  the  grounds  of 
Judge,  154  Mich.  483;  In  re  Apsey's  dismissal  are  made  part  of  the  reo- 
Estate,  173  Mich.  426.  ord.      Emerson,    Talcott    &    Co.    v. 

However,   .in    some    cases,    where  McCormick    Harvesting    Mach.    Co., 

certiorari   and    not    error    was   held  51  Mich.  5. 

the    proper    remedy    to    review    an  44  Jewell  v.  Lamoreaux,  30  Mich, 

order    (such  as  an  order  overruling  155. 

a  plea  of  matter  in  abatement) ,  the  46  Watson    v.    Watson,    47    Mich, 

supreme    court    has    passed    on    the  427. 

merits  of  the  controversy  on  a  writ  46  Schwab  v.  Coots,  44  Mich.  463. 

of  error,  the  case  having  been  care-  47Crippen  v.  People,  8  Mich.  117. 

fully    briefed    on    both    sides.      La  48  Carpenter    v.    Myers,    90    Mich. 

Vasser   v.    Chesbrough   Lumber   Co.,  209. 

190   Mich.  403 ;    City  of  Sault  Ste.  49  Eecor  v.  St.  Clair  Circuit  Judge, 

Marie  v.   Minneapolis,  St.   P.  &   S.  139  Mich.  156. 

S.  M.  E.  Co.,  184  Mich.  681.  60  City  of  Flint  v.  Genesee  Circuit 

43  City  of  Flint  v.  Genesee  Circuit  Judge,  146  Mich.  439. 
Judge,  14G  Mich.  394,  and  cases  cited. 


576  Ekror,  Writ  of  §  7 

to  be  reviewable  on  error:  order  on  a  special  appeal  from 
justice  court  that  the  cause  stand  for  trial  on  its  merits ;  *^ 
an  order  overruling  or  sustaining  a  demurrer  (now  super- 
seded by  a  motion  to  dismiss),  a  substitute  for  a  demur- 
rer, before  final  judgment;  ^'^  order  for  security  for  costs 
with  a  stay  until  filed,  and  for  payment  of  adjudged 
costs  of  a  former  trial;  ^^  affirmance  by  the  circuit  court 
on  certiorari  of  the  action  of  a  commissioner  dissolving 
an  attachment;  "  order  dismissing  a  capias,  and  discharg- 
ing a  defendant  from  arrest  on  condition  that  he  file  a 
stipulation  not  to  bring  suit  for  his  arrest  against  either 
the  plaintiff  or  sheriff;"  order  overruling  a  motion  to 
quash  a  writ ;  *^  order  declaring  an  appeal  bond  forfeited 
for  non-appearance  of  the  criminal  for  trial ;  ^'^  order  al- 
lowing a  delayed  appeal.^^ 

The  propriety  of  a  ruling  on  a  motion  to  quash  the 
service  of  summons  or  declaration  may  be  raised  by  writ 
of  error  where  the  moving  party  desires  to  stand  upon, 
and  not  to  waive,  its  alleged  rights.^* 

61  Dodge  V.  Nichols,  136  Mich.  28.  and  dismissing  the  declaration  with 

62  Bancroft  v.  Board  of  Regents,  costs,  unless  amended  and  an  attor- 
192  Mich.  168;  Wanner  v.  Martin,  ney's  fee  paid  within  a  specified 
173  Mich.  503;  Backus  v.  Trumbull  time,  is  not  reviewable  until  after 
Motor  Car  Co.,  194  Mich.  109;  the  time  limited  for  amendment. 
Kirchner  v.  Wood,  48  Mich.  199;  Clark  v.  Village  of  North  Muskegon, 
Blackwood  v.   Van  Vleet,  10  Mich.  86  Mich.  29. 

398 ;   Fitzsimmons  v.  Milwaukee,  L.  63  Clark  v.  Bay  Circuit  Judge,  154 

S.    &   W.    Ry.    Co.,    98    Mich.    257;  Mich.  483. 

Thompkina     v.     Bowen,     123    Mich.  But    order    dismissing    action    for 

377;    Bennett   v.   Nichols,    12   Mich.  failure  to  furnish  security  for  costs 

22;  Perry  v.  Church,  107  Micb.  480.  is  a  final  one.     Craig  v.  Ingram  Cir- 

Especially    is    this    true    where    a  cuit  Judge,  171  Mich.  33. 

demurrer   was   sustained    as   to   two  64  Gray  v.  York,  44  Mich.  415. 

of   defendants  and   overruled   as  to  66  Adams  v.  Church,  22  Mich.  79. 

one    of    them.      Toleikis    v.    Austin,  66  Brady   v.   Toledo,   A.,   A.   &   N. 

197   Mich.   333.  M.  R.  Co.,  73  Mich.  457. 

But  an  order  overruling  a  demur-  67  People  v.   Stimer,  82   Mich.   17. 

rer  to  a  plea  in  abatement  was  held  68  In  re  Apsey  's  Estate,  173  Mich, 

final    in    Campbell    v.    Hudson,    106  426. 

Mich.  523.  69  Trumbull     Motor     Car     Co.     v. 

An  order  sustaining  a  demurrer,  Wayne  Circuit  Judge,  189  Mich.  554. 


§  8  Error,  AVrit  of  577 

An  order  made  after  a  remittitur  is  filed  with  the  lower 
court,  denying-  a  motion  for  a  new  trial  on  the  merits, 
is  not  a  final  determination  so  as  to  be  reviewable  on 
writ  of  error;  and  the  review  by  writ  of  error  of  an  order 
refusing  a  new  trial  which  is  expressly  permitted  by 
statute  relates  to  a  refusal  prior  to  a  writ  of  error  and 
not  after  a  writ  of  error. ^° 

§  8.  Proceedings  ^,ccording  to  the  course  of  the  com- 
mon law. 

The  writ,  unless  it  is  otherwise  provided  by  statute, 
lies  only  to  courts  of  record  to  review  proceedings  ac- 
cording- to  the  course  of  the  common  law.^^  Where  the 
court  acts  in  a  summary  manner,  or  in  a  new  course,  dif- 
ferent from  the  common  law,  a  certiorari,  and  not  a  writ 
of  error,  is  the  appropriate  remedy.^^ 

It  is  not  enough  tliat  the  proceedings  are  had  in  a  court 
which  ordinarily  and  pi-imarily  exercises  connnon  law 
jurisdiction.^'  When  no  such  issue  is  involved  as  could 
ever  be  a  common  law  question,  the  relief  must  be  had  by 
some  other  process.^* 

For  instance,  error  does  not  lie  to  review  a  proceed- 
ing to  dissolve  an  attachment;  ^^  nor  to  review  the  valid- 

eOMinkkincn  v.   Quincy  Min.   Co.,  Circuit  Judge,  150  Mich.  668;  In  re 

]72  Mich.  404.  Erdman's  Estate,  179  Mich.  567. 

eiHolbrook  v.  Cook,  5  Mich.  225;  63  Cross   v.   People,   8  Mich.   113; 

Fletcher    v.    Clark,    .39    Mich.    374;  Conrad    v.    Button,    28    Mich.    365; 

Chaffee  v.  Soldan,  5  Mich.  242;  Pol-  Cameron  v.   Bentley,   28  Mich.   520; 

hemus    v.    Ana    Arbor    Sav.    Bank,  Churchill    v.    Burt,    32    Mich.    490; 

27  Mich.   44;    Cameron   v.   Bentley,  Smith  v.  Lapeer  Co.  Supt.  of  Poor, 

28  Mich.  520;   Conrad  v.  Button,  28  ;!4  Mich.  58. 

Mich.  365;  Hartz  v.  Wayne  Circuit  64  Brinsmade 's    Appeal,   52    Mich. 

Judge,    164    Mich.    231;    Conrad    v.  537. 

Freeland,    18   Mich.   255;    Comstock  65  Qore  v.  Ray,  69  Mich.   114. 

V.   Wayne   Circuit   Judge,   30   Mich.  But  where  .iudgmcnt  was  entered 

98;  Miller  v.  Rosier,  31  Mich.  475;  against  defendants  by  default,  after 

Adams  v.  Church,  22  Mich.  79.  they    Iiad    appeared    especially    and 

62  Holbrook  v.  Cook,  5  Mich.  225;  moved  to  (luasii  an  attachment,  and 

United  States  Gypsum   Co.  v.  Kent  no    further   steps    were    taken    after 
1  Abbott— 37 


578  Error,  Writ  of  §8 

ity  or  sufficiency  of  proceedings  on  a  motion  to  set  aside 
a  capias  ad  respondendum,  and  it  cannot  be  reviewed  on 
the  writ  after  final  judgment ;  ^®  nor  to  review  the  entry 
of  judgment  of  the  circuit  court  upon  the  filing  of  a 
transcript  of  a  judgment  of  a  justice  of  the  peace;  ^"^  nor 
to  review  proceedings  to  compel  a  son  to  support  his 
mother.^'  So  probate  proceedings  not  according  to  the 
course  of  the  common  law,^®  and  habeas  corpus  proceed- 
ings/" or  bastardy  proceedings,"^^  cannot  be  reviewed. 
But  the  fact  that  proceedings  in  the  commencement  in  a 
lower  court  were  not  in  common-law  form,  does  not  pre- 
clude a  writ  of  error  if  the  trial  on  appeal  to  the  circuit 
court  assumed  substantially  that  nature^^ 

In  one  case,  where  a  statute  provided  a  remedy  by  a 
special  proceeding,  it  added  "subject  to  the  right  of  ap- 
peal to  the  supreme  court  according  to  law."  It  was 
claimed  that  the  only  remedy  to  correct  errors  of  law 
was  by  certiorari  and  that  the  statute  was  declaratory 
merely  of  the  right  of  a  party  to  sue  out  a  writ  of  certio- 
rari, but  was  held  that  the  statute  contemplated  the  most 
effective  method  of  review  to  be  employed  which  in  the 
particular  case  was  held  to  be  a  writ  of  error.''^* 

the  motion  was  overruled,  the  writ  American  Baptist  Missionary  Union 

lies.     Pierce    v.   Johnson,   93    Mich.  v.  Peck,  9  Mich.  445. 

125;  Ripon  Knitting  Works  V.  Same,  Where    a    proceeding    to    recover 

93  Mich.  129.  the    possession    of    land    under    the 

66  Miller  v.  Rosier,  31  Mich.  475.  statute  "of  forcible  entries  and  de- 

67  Townsend  v.  Tudor,  41  Mich.  tainers"  is  appealed  to  the  circuit 
263.  court,    it    becomes    in    that    court   a 

68  Smith  v.  Superintendents  of  proceeding  according  to  the  course 
Poor  of  Lapeer  County,  34  Mich.  of  the  common  law,  and  error  is 
58.  therefore  the  only  mode  of  review- 

69  See  §  9,  post.  ing    the    judgment    of    the    circuit 

70  People  V.  Calhoun  Circuit  court.  Parker  v.  Copeland,  4  Mich. 
Judge,  30  Mich.  266.  528. 

71  People  v.  Brannen,  173  Mich.  73  Township  of  Custer  v.  Dawson, 
411.  178   Mich.   367,  Justice  Brooke  dis- 

72  In  re  Stroebel,  194  Mich.  634;  senting. 


§9  Error,  Writ  of  579 

§9.  Determination  of  probate  appeals. 

The  judgment  of  a  circuit  court  upon  an  appeal  from 
the  decision  of  a  probate  court,  where  the  controversy 
involves  issues  analogous  to  common  law  issues,  may  be 
reviewed  by  writ  of  error.''^*  Error  lies  to  review  the  de- 
termination of  a  circuit  court  on  an  appeal  from  an  order 
of  a  probate  court  upon  an  administrator's  account;  '^  to 
review  the  adjudication  of  the  circuit  court  upon  an  ap- 
peal from  probate  court  allowing  or  disallowing  a  will;  "'^ 
to  review  the  judgment  of  the  circuit  court  on  an  appeal 
from  a  probate  court  in  a  proceeding  whereby  a  creditor 
seeks  to  compel  an  administrator  to  pay  his  claim  and 
the  case  involves  substantially  the  issue  plene  adminis- 
travit;"  and  to  review  an  order  refusing  to  appoint  an 
administrator  de  bonis  non,  where  it  involved  a  deter- 
mination of  the  question  of  fact  whether  there  were 
assets  still  to  be  administered.''  On  the  other  hand,  the 
writ  does  not  lie  to  review  the  appointment  of  an  ad- 
ministrator ''^  or  guardian  ^^  or  trustee ;  '^  or  to  remove 
an  administrator;  ^^  or  to  review  the  refusal  of  the  cir- 
cuit court  to  affirm  a  probate  order  to  an  executor  to  ad- 
vance moneys  to  beneficiaries  on  coming  of  age;  '^  or  to 
review  the  granting  of  an  order  of  sale  of  personal  prop- 
erty of  an  estate  by  a  probate  judge ;  '*  or  to  review  the 
affirmance  by  the  circuit  court  of  the  probate  court's  re- 

74  In  re  Stroebel,   194  Mich.  634;  peal  of   Mower,  48   Mich.   441;   Ap- 

Labar    v.    Nicholes,    22    Mich.    200;  peal  of  Brinsmade,  52  Mich.  537. 

Appeal   of   Mower,  48   Mich.  441.  80  Cameron   v.    Bentley,    28    Mich. 

Appeal,   instead  of  writ  of  error,  520 ;    Appeal    of    Mower,    48    Mich, 

does  not  lie.     Appeal  of  Mower,  48  441.    But  see  Coot  v.  Ionia  Probate 

Mich.  441.  Judge,  93  Mich.  304. 

76  Hall  V.  Grovicr,  25  Mich.  428.  81  In    re    Erdman's    Estate,    179 

76  American     Baptist     Missionary  Mich.   567. 

Union  v.  Peck,  9  Mich.  445.  82  Holbrook  v.  Cook,  5  Mich.  225; 

77  Brown  v.  Forsche,  42  Mich.  492.       Conrad  v.  Button,  28  Mich.  365. 

78 Owen    V.    Ward's    Estate,    125  83  Knorr  v.  Millard,  52  Mich.  542. 

Mich.  30.  84  In     re     Koenig's     Estate,     152 

79  Woolley  V.  Crane,  86  Mich.  360 ;  Mich.  432. 
Holbrook  v.  Cook,  5  Mich.  225;  Ap- 


580  Errok,  Writ  of  §9 

fusal  to  relieve  an  executor  from  giving  bond  on  sale  of 
realty;'*  or  to  review  an  order  of  the  circuit  court  re- 
versing an  order  of  the  probate  court  for  irregularity, 
and  remanding  the  case  to  the  probate  court  for  action 
upon  an  administrator's  account;'®  or  to  review  an 
order  of  the  circuit  court  affirming  one  of  the  probate 
court  requiring  an  executor  to  furnish  a  further  bond 
and  to  render  an  account.''  So  an  affirmance  by  the  cir- 
cuit court  of  an  order  of  the  probate  court,  extending  a 
commission  on  claims,  and  directing  the  commissioners 
to  hear  and  adjudicate  upon  a  specified  claim,  is  not  a 
common  law  final  order  or  judgment,  and  cannot  be  re- 
viewed." 

An  order  reinstating  an  appeal  from  an  order  allow- 
ing the  final  account  of  an  administrator  is  reviewable 
on  writ  of  error  after  final  judgment.'® 

§  10.  Determination  of  appeals  from  justices  of  the 

peace. 

"While  a  writ  of  error  does  not  lie  from  the  supreme 
court  to  a  justice  of  the  peace,  the  final  judgments  or  de- 
terminations of  the  circuit  court  on  appeal  from  a  justice 
of  the  peace,  in  proceedings  according  to  the  common 
law,  are  reviewable  by  writ  of  error.®°  Thus,  error  lies 
to  review  a  joint  judgment  against  a  principal  and  his 
surety  upon  a  bond  on  appeal  from  a  justice's  court  to 
the  circuit  court;  '^  and  to  review  an  order  of  the  circuit 
court  dismissing  on  motion  an  appeal  from  justices' 
court  '^  as  for  want  of  prosecution.*^ 

85  Fletilicr  v.  Clark,  :!9  Midi.  374.  91  Evers  v.  Sager,  28  Mich.  47. 

86  Holbrook  v.  Cook,  5  Mich.  225.  92  Stall  v.  Diamond,  37  Mich.  429; 

87  In  re  Sanborn,  107  Mich.  189.  McCombs  v.  Johnson,  47  Mich.  592. 

88  Churchill  v.  Burt,  32  Mich.  490.  The   denial  of   a  motion   to   dismiss 

89  Gifford  v.  Washtenaw  Circuit  an  appeal  from  a  justice's  court  is 
Judge,  189  Mich.  546.  not   reviewable   on   a   writ   of   error 

90  Writ  was  discretionary  where  to  review  a  judgment  of  the  circuit 
.judgment  did  not  exceed  .$500,  lourt  on  the  merits.  Altman  v. 
under    1917    statute    now    repealed.  Young,  38  Mich.  410. 

See  §4,  ante.  93  Willis  v.  Cinibert.  27  Mich.  91. 


§  12  Eruok,  Writ  of  581 

§  11.  Review  of  questions  of  fact. 

With  certain  exceptions,  a  writ  of  error  does  not  lie 
to  review  the  facts  but  the  review  is  limited  to  questions 
of  law.®* 

§  11a.  Agreement  that  decision  of  lower  court  shall 

be  final. 
An  agreement  to  accept  the  decision  of  a  lower  court 
as  final  has  been  held  to  be  valid  so  as  to  preclude  an 
appeal.®^ 

§  12.  By  and  against  whom  error  may  or  should  be 
brought. 

A  writ  of  error  may  be  brought  by  any  party  to  a  final 
judgment  or  determination  aggrieved  thereby.*^  The 
parties  to  the  judgment  should  be  made  parties  to  the 
writ  of  error.  The  writ  brings  up  the  whole  case.  There- 
fore, a  plaintiff  who  has  recovered  judgment  against 
some  of  several  defendants,  but  against  whom  judgment 
is  rendered  in  favor  of  others  of  the  defendants,  must 
bring  his  writ  of  error  against  all  of  the  defendants,  as 
well  as  those  against  whom  he  has  recovered  judgment 
as  those  for  whom  judgment  has  been  rendered  against 
him.®''  So,  also,  a  writ  of  error  to  bring  up  a  judgment 
against  several  parties  must  be  taken  out  in  the  name  of 
all.  Any  one  of  them  may  sue  out  the  writ  and,  if  the 
others  do  not  wish  to  prosecute  it,  a  severance  may  be 
had  in  the  manner  which  will  be  presently  explained.®' 

When  the  prevailing  ])arty  in  the  court  below  has  died 
since  the  judgment  without  sui'i'ivors,  a  writ  of  error 

84  See  §  45,  post.  One  who  lias  uot  taken  or  joined 

W  Hoste  V.  Dalton,  ];57  Midi.  ;")22,  in  an  appeal  to  the  circuit  court  can- 

;')26;   Cole  v.  Thayer,  25  Mich.  212.  not   ))ring  error   on   the   decision   of 

96  Jackson    v.    Hosmer,    14    Mich.  the   circuit   court.     Jackson   v.   Hos- 

88;   Taff  v.   Hosmer,  14  Mich.  249;  nier,   14   Mich.   88. 

Jaquetli   v.   Jackson,   17   Wend.    (N.  97  Mills  v.  Bunco,  26  Mich.   101. 

Y.)  434.  98  Spencer  v.  Fish,  43  Mich.  226. 


582  Error,  Writ  of  §  12 

may  issue  without  any  steps  to  revive  the  judgment,  in 
which  case,  by  the  common  law  practice,  a  scire  facias  ad 
audiendum  errores  was  necessary  after  the  writ  was  re- 
turnable, and,  under  that  writ,  the  representatives  of  a 
deceased  party  could  be  brought  in ;  but  now  a  more  con- 
venient practice  has  been  authorized  in  tliis  state, 
whereby,  at  any  time  after  the  return  of  the  writ  of 
error,  either  the  appellant  or  the  representatives  of  the 
deceased  party  may  file  an  affidavit  of  such  death  and  of 
the  appointment  of  such  representatives,  and  thereupon 
suggest  the  same  of  record,  after  which  the  case  may 
proceed,  in  general,  in  the  same  manner  as  if  the  death 
of  the  party  had  not  intervened.^®  After  the  death  of  a 
party  to  a  judgment  aggrieved  thereby,  if  the  judgment 
was  to  recover  any  debt  or  damages  only  or  any  per- 
sonal property,  the  executors  or  administrators  of  such 
party  may  bring  a  writ  of  error,  or,  if  the  judgment  was 
for  the  recovery  of  real  estate  or  the  possession  thereof, 
or  if  the  title  to  real  estate  was  determined  thereby,  the 
heirs  or  devisees  of  the  deceased  party,  to  whom  such 
real  estate  was  devised  or  descended,  or  might  have  de- 
scended, may  bring  the  writ.^  So,  also,  if  one  or  more 
of  several  persons  against  whom  a  judgment  has  been 
rendered  die,  a  writ  of  error  may  be  brought  by  the 
survivor  or  survivors.^ 

If  one  or  more  of  several  persons  for  whom  a  judg- 
ment in  a  personal  action  has  been  rendered  die,  it  has 
been  held  that  the  writ  of  error  must  be  brought  against 
the  survivor  or  survivors  only,  and  not  against  the  repre- 
sentatives of  the  deceased  party  or  parties,  unless  the 
judgment  has  been  revived  in  their  favor,  in  which  case 
the  representatives  should  be  joined  with  the  survivor 

MSup.  Ct.  Eule  53;  Van  Valkon-  1  Com.   Dig.   "Pleader,"  B,  3,  9. 

bury  V.  Rogers,  17  Mich.  322 ;  Cour-  2  Brewer    v.    Turner,    1    Strange 

ser  V.  Jackson,  159  Mich.  119;  Sey-  234. 
mour  V.  Bruske,  140  Mich.  244. 


§  14  Ereor,  Writ  of  583 

or  survivors.  If  a  judgment  has  been  rendered  in  favor 
of  several  parties,  and  one  or  more  of  them  die  and  the 
action  so  involve  real  estate  as  to  constitute  the  heirs  of 
the  deceased  party  or  parties  the  persons  in  interest,  in- 
stead of  the  representatives  of  the  deceased,  it  has  been 
held  that  the  writ  of  error  must  be  brought  as  well 
against  the  heirs  of  the  deceased  party  or  parties  as 
against  the  survivor  or  survivors.^ 

The  question  of  a  misjoinder  or  nonjoinder  of  parties 
should  be  raised  by  a  motion  to  dismiss  the  writ.* 

§  13.  Notice  of  issuance  of  writ  where  party  dies 

after  jud^^ent. 
It  is  provided  by  rule  that  when,  after  the  death  of  a 
party  to  a  judgment  without  survivors,  and  before  the 
personal  representatives  have  revived  the  same,  the  ad- 
verse party  sues  out  a  writ  of  error,  no  notice  need  be 
given  of  the  issuance  of  the  writ  until  the  writ  is  re- 
turned, but  the  appellant  or  the  representatives  of  the 
adverse  party  to  the  judgment  may,  at  any  time  after  the 
return,  file  an  affidavit  of  such  death  and  of  the  appoint- 
ment of  such  representatives  and  thereupon  suggest  the 
same  of  record.* 

§  14.  Proceedings  in  case  part  of  several  parties 

desire  to  bring  error. 
In  cases  where  a  writ  of  error  is  brought  by  one  or 
more  of  several  parties,  such  party  is  required,  at  least 
fifteen  days  before  filing  his  praecipe  for  writ  of  error, 
to  serve  upon  the  other  parties  against  whom  judgment 
has  been  entered  a  notice  of  his  intention  to  apply  for  a 
writ  of  error;  and  the  parties  upon  whom  such  notice  is 
served  must,  within  ten  days  thereafter,  serve  notice  on 

3  Bartholomew  v.  Belfield,  2  Bulst.  4  Mills  v.  Bunee,  26  Mich.   101. 

244;    Doe    v.   .Tones.   2  Maule  &   S.  6  Sup.  Ct.  Rule  53. 

473. 


584  Error,  Writ  of  §  14 

such  party  of  their  intention  to  join  in  the  writ  of  error, 
or,  in  default  thereof,  on  filing  a  praecipe  for  the  writ  of 
error  and  proof  of  service  of  such  notice,  a  rule  may  be 
filed  granting  such  party  or  parties  leave  to  prosecute 
such  writ  of  error  severally.* 

Form  of  Notice  to  Join  in  Writ  of  Error 

The  Circuit  Court  for  the  County  of 

A.  B.  1 

C.  D.   and  E.  F.J 

To  the  Above-Named  Defendant  E.  F. : 

You  will  please  to  take  notice  that  the  said  defendant  C.  D.  intends  to 
apply  for  a  writ  of  error,  to  be  issued  out  of  the  Supreme  Court  of  the 
State  of  Michigan  in  said  cause,  and  that,  if  you  desire  to  join  in  said 
writ,  you  are  required,  within  ten  days  after  service  of  this  notice  upon 
you,  to  serve  notice  of  your  intention  to  join  in  said  writ  of  error,  or,  in 
default  thereof,  a  rule  will  be  filed,  granting  the  said  C.  D.  leave  to  prose- 
cute said  WTit  of  error  severally. 

Dated,  etc. 

Yours,  etc., 

K.  L., 
Attorney  for  Defendant  C.  D. 
Business  address: 

,    Mich. 

§  15.  Time  when  writ  must  be  taken  out. 

All  writs  of  error  upon  any  judgment  or  final  deter- 
mination rendered  in  any  cause  in  any  court  of  law  and 
of  record  in  this  state  must  issue  within  one  year  after 
the  rendering  of  such  judgment  or  final  determination 
made,  and  not  after,  except  in  certain  cases  of  disability 
or  death  which  will  be  presently  referred  to;  and,  in  all 
cases  where  a  bill  of  exceptions  has  been  settled  and 
signed  by  the  circuit  judge,  the  writ  of  error  must  be 
taken  out  within  ten  days  after  the  bill  of  exceptions  has 
been  signed.  But  the  time  for  taking  out  a  writ  of  error 
may  be  extended,  not  exceeding  six  months,  by  the  su- 

6  Sup.  Ct.  Rule  10. 


§  15  Ereor,  Writ  of  585 

preme  court  or  by  one  of  the  supreme  court  justices  at 
chambers,  when  a  party  has  been  prevented  from  taking 
out  the  writ  by  circumstances  not  under  his  control^ 
Such  extension  will  be  made  only  on  special  motion  and 
after  a  proper  showing.® 

If  the  person  against  whom  any  such  judgment  has 
been  rendered  or  final  detennination  made  is  at  the  time 
either  (1)  within  the  age  of  twenty-one  years,  or  (2) 
insane,  or  (3)  imprisoned  on  any  criminal  charge,  or  in 
execution  upon  conviction  of  a  criminal  offense  for  any 
tenn  less  than  for  life,  the  time  during  which  such  dis- 
ability continues  will  not  be  deemed  any  portion  of  the 
time  limited  for  bringing  a  writ  of  error,  but  such  per- 
son may  bring  such  writ  after  the  time  so  limited  and 
within  two  j^ears  after  his  disability  has  been  removed.® 
If  the  person  entitled  to  bring  the  writ  dies  during  the 
continuance  of  his  disability,  his  heirs,  devisees,  execu- 
tors or  administrators  entitled  to  bring  the  writ  may  do 
so  at  any  time  within  two  years  after  his  death ;  ^°  but 

7Jud.  Act,  ch.  50,  §6;  Comp.  not  be  acquired  by  waiver  or  con- 
Laws  1915,  §13741;  Kaiser  v.  sent  and  a  writ  sued  out  after  the 
Wayne  Circuit  Judge,  162  Mich.  expiration  of  the  statutory  time, 
247;  Bliss  v.  Caille  Bros.  Co.,  157  where  no  extension  of  time  has  been 
Mich.  258.  granted,    will   be    dismissed    by    the 

Where  a  motion  to  dismiss  is  made  court  of  its  own  motion.     Bolton  v. 

because    the    writ    was    not    issued  Cummings,  200  Mich.  234. 

within  ten  days  after  the  bill  of  ex-  8  Jud.    Act,    ch,    50,    §  6 ;    Comp. 

ceptions  was  signed,  it  will  be  de-  Laws  1915,  §  13741. 

nied  where  a  showing  is  made  which  The  time  for  issuing  a  writ  of  er- 

would  iiave  authorized  an  extension  ror    may    be    extended    on    motion, 

of    time    if    application    had    been  where  the  petitioner  is  himself  with- 

made  before  the  writ  of  error  was  out  fault,  as  where  failure  to  sue  out 

sued  out.     Rasor  v.  Mott,  194  Mich.  the  writ  within  the  statutory  time  is 

311.  due  solely  to  the  neglect  of  his  coun- 

It  is  generally  held,  however,  that  sel.     Belmer  v.  Boyne  City  Tanning 

the  supreme  court  has  no  jurisdic-  Co.,  158  Mich.  399. 

tion    of    a   writ    of    error    sued    out  9  Jud.    Act,    eh.    50,    §7;    Comp. 

after  the  expiration  of  the  statutory  Laws  1915,  §  13742. 

period.    Riley  v.  Detroit  United  Ry.,  10  Jud.    Act,    ch.    50,    §8;    Comp. 

iG:\    Mich.    327.     Jurisdiction    can-  Laws  1915,  §  13743. 


586  Error,  Writ  of  §  15 

the  existence  of  any  disability  specified  will  not  author- 
ize the  bringing  of  a  writ  of  error  after  the  expiration  of 
five  years  from  the  time  of  rendering  the  judgment.^^ 

The  time  limited  by  statute  within  which  a  writ  of 
error  must  be  issued  commences  from  the  rendition  of 
the  judgment,  ^^  and  a  party  cannot  prolong  it  by  mov- 
ing to  vacate  the  judgment  although  there  be  consider- 
able delay  before  the  motion  is  decided.^'  So  the  time  is 
not  enlarged  by  the  statute  permitting  the  denial  of  a 
motion  for  a  new  trial  to  be  reviewed  on  writ  of  error." 
When  a  judgment  is  entered  in  vacation,  the  time  with- 
in which  a  writ  of  error  must  be  taken  out  is  to  be  com- 
puted from  the  day  the  judgment  is  actually  entered  by 
the  clerk.^'  If  a  writ  of  error  be  issued  after  the  time 
allowed  therefor,  it  will  be  dismissed  on  motion. ^^ 

§  16.  How  writ  obtained. 

The  party  desiring  a  writ  of  error  to  be  issued  should 
pay  to  the  clerk  of  the  supreme  court  the  sum  of  six  dol- 
lars, and  request  him  to  issue  the  writ  in  accordance  with 
a  praecipe,  which  should  specify  the  court  to  which  the 
writ  is  to  be  issued,  the  names  of  the  parties,  designat- 
ing who  is  plaintiff  and  who  defendant  and  who  is  the 
proposed  appellant  and  who  the  proposed  appellee,  and 
the  date  upon  which  it  is  desired  that  the  writ  shall  be 
made  returnable.  Upon  such  step  being  taken,  the  clerk 
will  forthwith  issue  the  writ  in  accordance  with  the  prae- 
cipe and  deliver  it  to  the  party  applying  for  it. 

In  connection  with  the  Judicature  Act  amendment  in 
1917  where  the  judgment  is  for  not  more  than  $500  the 
writ  is  not  one  of  right,^'  it  was  provided  by  a  rule  of 

llJud.   Act,    ch.    50,    §9;    Comp.  IB  Jud.   Act,   ch.   50,   §10;    Comp. 

Laws  1915,  §  13744.  Laws    1915,    §13745;    McClung    v. 

12  Teller  v.  Willis,  12  Mich.  384;  McClimg,  39  Mich.  55. 

Borden  v.  Peoria  M.  &  F.  Ins.  Co.,  16  Borden  v.  Peoria  M.  &  F.  Ins. 

14  Mich.  232.  Co.,  14  Mich.  232. 

18  Buckley  v.  Sutton,  38  Mich.  1.  17  See  §  4,  ante. 

14  Hill  V.  Hill,  114  Mich.  599. 


§  17  Error,  Writ  of  587 

court  adopted  in  1917  that  any  one  desiring  to  secure  a 
writ  of  error  ' '  shall,  within  thirty  days  from  the  entry  of 
judgment,  prepare  a  concise  statement  of  what  is  in- 
volved in  the  case  and  the  points  relied  upon  and  notice 
the  same  on  the  opposite  party  for  settlement  before  the 
circuit  judge.  The  statement  when  so  settled  shall  be 
the  basis  of  the  application  to  this  court."  "  This  1917 
amendment  of  the  Judicature  Act  was  repealed  in  1919."* 

Form  of  Praecipe  for  Writ 

State  of  Michigan. 

In  the  Supreme  Court. 
A.  B., 

Plaintiff  and  Appellee, 

vs. 
C.  D., 

Defendant  and  Appellant. 

To  the  Clerk  of  the  Supreme  Court: 

Sir:— 

Please  issue  a  writ  of  error  in  the  above-entitled  cause  in  favor  of  the 
defendant  (or,  plaintiff),  directed  to  the  judge  of  the  circuit  court  for  the 

county  of ,  and  returnable Action  of 

Enclosed  find  clerk's  fee  of  six  dollars. 
Dated,  etc. 

Yours,  etc., 

K.  L., 

Attorney  for  Defendant  (or  Plaintiff) 

and  Appellant. 

§  17.  Form  of  writ. 

Writs  of  error  may  issue  of  course  out  of  the  supreme 
court  in  vacation  as  well  as  in  term,  and  are  made  re- 
turnable to  that  court."  They  are  styled  **In  the  Name 
of  the  People  of  the  State  of  Michigan,"  have  the  seal  of 
the  court  affixed  or  impressed  thereon,  which  is  made 
conclusive  evidence  that  the  writ  was  issued  by  the 
court,^°  are  tested  of  the  day  when  issued,  and  must  be 

18  Sup.  Ct.  Eule  59,  adopted  Sept.  No.   14,  amending  Pub.   Acts  1917, 

28,  1917.  No.  172. 

18a  See  §4,  ante.  20  How.    Stat.    (2nd    ed.)    11694; 

19Jud.    Act,   ch.    50,    §1;    Comp.  Jud,  Acts,  ch.  1,  §15;   Comp.  Laws 

Laws  1915,  §  13736;  Pub.  Acts  1919,  1915,  §  12020. 


588  Error,  Writ  of  §  17 

made  returnable  at  the  office  of  the  clerk  of  the  supreme 
court  on  a  day  certain,  either  in  vacation  or  in  term,  not 
less  than  ten  days  nor  more  than  forty  days  from  the 
issuance  thereof.^^ 

In  computing  the  time  within  which  a  writ  of  error 
is  to  be  made  returnable,  the  date  of  issue  should  be 
excluded  and  the  return  day  included. ^^ 

Form  of  Writ  of  Error 
Ib  the  Name  of  the  People  of  the  State  of  Michigan. 
To  the  Judge  of  our  Circuit  Court,  for  the  County  of ,  Greeting: 

Because,  in  the  record  and  proceedings,  and  also  in  the  giving  of  judg- 
ment in  a  plaint  which  was  in  our  said  circuit  court  before  you,  between 
A.  B.,  plaintiff,  and  C.  D.,  defendant,  in  a  plea  of  (specify  what),  manifest 
error  hath  intervened  to  the  great  damage  of  the  said  C.  D.,  as  by  his  com- 
plaint we  are  informed;  we,  being  willing  that  the  error,  if  any  there  be, 
should  in  due  manner  be  corrected  and  full  and  speedy  justice  done  to  the 
parties  aforesaid,  and  in  this  behalf,  do  command  you  that,  if  judgment 
be  thereupon  given,  then  you  send  to  our  Supreme  Court,  distinctly  and 
openly  under  your  seal,  the  record  and  proceedings  of  the  plaint  aforesaid, 
together  with  all  things  concerning  the  same,  and  this  writ,  so  that  our 
said  court  may  have  them  at  the  Supreme  Court  Room,  in  the  Capitol,  in 

the  City  of  Lansing,  on  the day  of next,  that,  the  record  and 

proceedings  aforesaid  being  inspected,  we  may  cause  to  be  further  done 
thereupon,  for  correcting  that  error,  what  of  right  and  according  to  the  law 
and  custom  of  the  State  of  Michigan  ought  to  be  done. 

Witness,  Hon.  C.  G.,  Chief  Justice  of  our  Supreme  Court,  at  Lansing,  this 
day  of   in  the  year  of  our  Lord   

C.  H., 
Clerk  of  the  Supreme  Court. 

§  18.  Notice  of  issuance. 

The  appellant  must  cause  notice  of  the  issuance  and 
the  date  and  return  day  of  the  writ  to  be  served  on  the 
adverse  party  or  his  attorney  in  the  court  below  within 
ten  days  after  the  issuance  thereof;  and  an  affidavit  of 
such  service  is  required  to  be  filed  in  the  clerk's  office 
on  or  before  the  return  day.'^^ 

81  Hup.  Ct.   Rule  4.  23  Sup.  Ct.  Rule  5. 

22  Doyle  v.  Mizner,  41  Micb.  549. 


§  19  Error,  Writ  of  589 

Form  of  Notice  of  Issuing  Writ  of  Error 
State  of  Michigan. 

The  Supreme  Court. 
A.  B., 

Plaintiff  and  Appellant, 
v.s. 
CD., 
Defendant  and  Appellee. 

Sir:— 

Yon  will  please  to  take  notice  that,  upon  the day  of ,  A.  D. 

,  the  above-named  plaintiff  and  appellant  sued  out  a  writ  of  error 

in  the  above-entitled  cause,  from  the  office  of  the  Clerk  of  the  Supreme 
Court  of  the  State  of  Michigan,  in  the  City  of  Lansing,  directed  to  the 

Circuit  Court  for  the  County  of   ,  which  said  writ  of  error  is  dated 

the   day  of    ,  A.  D ,  and  is  made  returnable  on  the 

day  of ,  A.  D 

Dated,  etc. 

Yours,  etc., 

J.  K., 
Attorney    for   Plaintiff 

and  Appellant. 
Business    address : 

,  Mich. 

To  K.  L.,  Attorney  for  Defendant  and  Appellee. 

§  19.  Return  of  writ. 

The  writ  of  error  is  sent  by  the  clerk  of  the  supreme 
court  to  appeUant's  attorney  who  sends  it  to  the  clerk 
of  the  trial  court.  It  is  obeyed  by  sending  a  transcript 
of  the  record  oi-  proceedings  in  the  court  below,  to  the 
supreme  court.  The  clerk  upon  whom  the  writ  of  error 
is  served,  must  cause  a  transcript  of  the  record  to  be 
made,  and  must  certify  and  annex  the  same  to  the  writ, 
and  endorse  thereon  and  sign  a  proper  retuni,  under 
the  seal  of  the  court  in  which  the  judgment  was  ren- 
dered; and  the  appellant  must  cause  the  same  to  be  filed 
in  the  clerk's  office  whence  such  writ  issued,  on  or  be- 
fore the   return   day  mentioned  therein.^*     Failure   to 

24  Snp.  Ct.  Rule  G.  should  be  returned  with  the  record. 

The  original  bill  of  exceptions,  if       Evims  v.  Norris,  fi  Mich.  fiO. 
any  lias  been  filed,  and  not  a  cnj)y, 


590  Errok,  Writ  of  §  19 

make  a  return  to  the  writ  within  the  proper  time  war- 
rants a  refusal  of  leave  to  file  the  return.** 

Form  of  Return 
To  the  Supreme  Court  of  the  State  of  Michigan: 

The  execution  of  the  within  writ  appears  by  the  transcript  of  record 
annexed  hereto. 

A.  B.,  Clerk  of  the  Circuit  Court  for  the  County  of 

(Date.) 

§  20.  Extending  time  for  return. 

The  time  for  returning  a  writ  of  error  may  be  ex- 
tended by  one  of  the  justices  of  the  supreme  court  or  a 
circuit  judge  for  good  cause  shown.  The  order  grant- 
ing such  an  extension  must  be  returned  with  the  other 
papers  to  the  clbrk  of  the  supreme  court.  The  time  fixed 
by  the  order  will  be  treated  in  all  respects  as  if  it  had 
been  the  original  return  day.  Such  extension  can  be 
had  only  upon  proper  notice  to  the  adverse  party.*^  But 
failure  to  serve  any  assignment  of  error,  where  no  sat- 
isfactory excuse  is  given,  warrants  a  refusal  to  extend 
the  time  to  make  return  to  the  writ  of  error,  and  author- 
izes a  dismissal  of  the  writ." 

§  21.  Bond  for  stay  of  proceedings. 

The  statute  *^  provides  that  no  writ  of  error  shall 
operate  to  stay  or  supersede  the  execution  in  any  civil 

26  Webster  v.  Fisk,  9  Mich.  250.  any     municipal     corporation,     is     a 

26  Sup.  Ct.  Rule  7.  party,  no  bond  shall  be  required  to 

27  Hanselman  v.  Adrian,  139  Mich.  be  given  by  any  such  party  as  a 
546.  prerequisite    to    the    issuance    of    a 

28  Jud.  Act,  ch.  50,  §  2 ;  Comp.  writ  of  error  or  the  taking  of  an 
Laws  1915,  §13737.  See  also  Doug-  appeal,  or  the  making  of  an  order 
lass  V.  Manistee  Circuit  Judge,  42  staying  proceedings. ' '  Jud.  Act,  ch. 
Mich.  495.  50,  §  27;  Comp.  Laws  1915,  §  13762. 

But  "in  any  suit  or  proceeding  in  Stay  of  proceedings  to  move   for 

which   the   State,   or   any  State   of-  new  trial  or  to  settle  bill  of  excep- 

ficer  duly  authorized  for  that  pur-  tions,  see  Stat  op  Proceedings. 

pose,     or    any    corporate    body    in  In  an  action  on  such  a  bond,  it  is 

charge  of  any  State  institution,  or  no   defense  that  its  conditions  cov- 


§  21  Error,  Writ  of  591 

action,  unless  the  appellant,  with  two  sufficient  sureties, 
shall  give  bond  to  the  appellee,  with  condition  that  the 
appellant  shall  prosecute  his  writ  to  effect,  and  shall 
pay  and  satisfy  such  judgment  as  shall  be  rendered 
against  him  thereon.  But  where  the  judgment  sought 
to  be  reviewed  has  been  rendered  in  an  action  to  re- 
cover possession  of  lands  under  the  statute,^®  if  the  writ 
of  en'or  be  sued  out  by  the  defendant,  the  bond  is  re- 
quired to  be  in  a  penalty  not  less  than  twice  the  amount 
of  the  annual  rental  value  of  the  premises  in  dispute, 
and,  in  addition  to  the  foregoing  conditions,  must  con- 
tain a  further  condition,  that,  if  the  plaintiff  obtain 
restitution  of  the  premises  in  the  suit,  the  defendant 
will  forthwith  pay  all  rent  due  or  to  become  due,  or 
the  rental  value  thereof  during  the  time  the  same  has 
been  detained  by  the  defendant,  to  the  plaintiff  for  the 
premises  described  in  the  complaint,  up  to  the  time  the 
plaintiff  obtains  possession  thereof,  together  with  the 
costs  of  suit  in  prosecuting  the  complaint  and  obtain- 
ing restitution  of  the  premises.  If  the  plaintiff  obtains 
restitution  of  the  premises,  he  may,  at  his  election,  sue 
and  recover  on  this  bond  or  bring  his  action  under  the 
statute '"  to  recover  double  damages.  If,  however,  a 
bond  has  been  given  as  provided  by  the  statute  for  a 
stay  of  proceedings  for  the  purpose  of  moving  for  a 
new  trial  or  settling  a  bill  of  exceptions,^^  no  further 

ered  both  the  statute  for  a  bond  to  the  principal  to  pay  the  judgment 
stay  proceedings  on  moving  for  a  affirmed  on  rehearing,  after  the  re- 
new trial,  and  also  the  statute  pro-  versal  thereof  on  the  original  hear- 
viding  for  a  bond  on  issuing  a  writ  ing.  Culver  v.  Fidelity  &  Deposit 
of  error,  and  that  the  conditions  Co.  of  Maryland,  149  Mich.  630. 
were  in  the  alternative.  Tenhopen  29  Jud.  Act,  ch.  30 ;  Comp.  Laws 
V.    Taylor,   103   Mich.    178.  1915,   §  13229  et  seq. 

Where  a  bond  is  given  to  stay  ex-  80  Jud.    Act,   ch.   30,    §  23 ;    Comp. 

ecution    conditioned   on   payment   of  Laws    1915,    §  13251. 

the  judgment,  if  not  reversed,  and  31  Jud.   Act,   ch.   22,    §23;    Comp. 

satisfying  such  judgment  as  shall  be  Laws  1915,  §  12812.     See  also  Stay 

rendered    on    a    writ    of   error,    the  of  Proceedings. 
sureties  are  bound  on  the  default  of 


592  Error,  Writ  of  |  21 

bond  ia  required  to  stay  execution  on  the  judgment 
pending  the  proceedings  on  the  writ  of  error. ^^ 

Form  of  Bond 

Know  All  Men  by  These  Presents :  That  we,  C.  D.,  of ,  as  princi- 
pal, and  K.  L.,  of ,  and  M.  N.,  of   ,  as  sureties,  are  held  and 

firmly  bound  unto  A.  B.  in  the  sum  of dollars,  (such  sum  as  shall 

have  been  determined,  at  least  double  the  amount  of  the  judgment  upon 
which  the  writ  of  error  is  brought  if  the  judgment  is  against  the  appellant) 
lawful  money,  to  be  paid  to  the  said  A.  B.,  his  executors,  administrators 
or  assigns ;  for  which  payment  well  and  truly  to  be  made,  we  bind  ourselves, 
our  heirs,  executors  and  administrators,  jointly  and  severally,  firmly  by  these 
presents.     Dated  the day  of ,  191.  .. 

Whereas,  judgment  ha.s  been  rendered  in  the  circuit  court  for  the  county 
of ,  in  favor  of  the  said  A.  B.  against  the  said  C.  D.  for dol- 
lars, damages  and  costs,  (or  as  the  judgment  may  be,)  in  which  judgment 
and  proceedings  the  said  C.  D.  complains  that  there  is  error  in  substance, 
and  to  be  relieved  therefrom,  hath  obtained  a  writ  of  error  to  remove  the 
same  to  the  supreme  court,  to  the  end  that  the  errors  made  therein  may  be 
corrected. 

Now,  therefore,  the  condition  of  this  obligation  is  such,  that  if  the  said 
C.  D.  .«hall  prosecute  his  said  writ  of  error  to  effect,  and  shall  pay  and 
satisfy  such  judgment  as  shall  be  rendered  against  him  upon  the  said  writ 
of  error  in  the  said  supremo  court,  then  this  obligation  to  be  void;  otherwise 
to  remain  in  full  force  and  virtue.  (Signatures.) 

§22.  How  sufficiency  of  sureties  and  penalty  of 

bond  determined. 
The  sutticiency  of  the  sureties  and  the  sum  for  which 
tlie  bond  must  be  given  must  l)e  determined  in  each  case 
by  a  justice  of  the  supreme  court  or  by  the  judge  of  the 
circuit  court  for  the  county  in  which  the  judgment  in 
the  case  was  rendered,  or  by  a  circuit  court  commis- 
sioner for  that  county,  but  the  penalty  of  the  bond  must 
not  be  less  than  double  the  amount  of  the  judgment  upon 
wliich  the  writ  of  error  is  brought,  if  such  judgment 
be  against  the  appellant,  nor  in  any  case  less  than  one 
hundred  dollars.^^ 

32.Tu(l.    Act,    ch.    oO,  §2;    Comp.           Circuit  court  has  no  discretion  to 

Laws  1915    §  137.37.  accept  a  bond  with  a  smaller  pen- 

33.Tud.    Act,    ch.    50,  §3;    Com)..       .alty.       Hogle     v.     Wayne     Circuit 

Laws  1015,  §1.17.38.  .'I'dge,  160  Mich.  575. 


§  24  Error,  Writ  of  593 

§23.  Additional  bond. 

The  supreme  court  or  the  circuit  judge  of  the  county 
where  the  cause  was  tried  has  power,  on  special  motion, 
to  order  an  additional  bond,  fix  the  penalty  thereof  and 
approve  the  sureties  thereto  or  to  refer  such  approval 
to  a  circuit  court  commissioner  of  the  county  in  which 
the  cause  was  pending.'* 

§  24.  Proceeding-s  upon  filing  bond. 

Tlie  bond  to  stay  or  supersede  the  executiou  pending 
proceedings  ou  a  writ  of  error  should  be  filed  in  the  of- 
fice of  the  clerk  of  the  court  in  which  the  judgment  was 
rendered,  at  the  time  of  serving  the  writ  of  error  on 
the  clerk,  and  notice  thereof  must  be  given  to  the  ap- 
pellee or  his  attorney.  When  this  has  been  done,  no  ex- 
ecution can  be  thereafter  issued  upon  the  judgment 
complained  of  during  the  pendency  of  the  writ  of  error, 
and,  if  an  execution  has  been  issued,  all  further  pro- 
ceedings upon  it  will  be  stayed  upon  the  officer  hold- 
ing the  execution  being  served  with  a  certificate  of  the 
service  of  the  writ  of  error  and  the  filing  of  the  bond, 
signed  by  the  clerk  with  whom  the  bond  has  been  filed.'^ 

The  bond  should  not  be  filed  with  the  clerk  until  the 
writ  of  error  is  served  upon  him,  for  until  then  there  is 
nothing  for  tlie  bond  to  operate  upon.  While  possibly 
the  clerk  might,  on  receiving  the  writ  of  error,  file  a 
bond  previously  left  with  him  for  that  purpose,  he  could 
not  do  so  otherAvise.'^ 

Form  of  Notice   of  Filing  Bond 

(Title  of  lower  court  and  cause.) 

Please  take  notice  that  on  the day  of ,  191 .  . ,  a  writ  of  error 

duly  issued  out  of  the  supreme  court  to  review  the  judgment  in  the  above 

34Jud.    Act,   ch.    50,    S:<;    Gomp.  36  How.-ird   v.  Hess,  6.'?  Mich.  725. 

t.aws  1915,  8  137.18. 

35  Jud.    Act,    ch.    ."0.    S  A  ;    Coinji. 
Laws  ]9].l,  8  137."9. 

1  .\l>hott— .".8 


594  Error,  Writ  of  §  24 

entitled  cause  was  served  upon  the  clerk  of  said  circuit  court,  and  at  said 

time  there  was  filed  in  his  office  a  bond  in  the  penal  sum  of dollars, 

running  to  said ,  signed  by  said as  principal,  and  by 

and  as  sureties,  and  conditioned  (state  conditions  of  bond),  which 

bond  has  been  duly  approved  by  (add  title  of  judge  or  commis- 
sioner), and  that  thereby  the  proceedings  on  said  judgment  are  stayed  dur- 
ing the  pendency  of  said  writ  of  error. 

Yours,  etc., 

(Date.)  A.  B.,  attorney  for 

To ,  defendant  in  error  (or  "attorney  for  defendant  in  error.") 

Form  of  Certificate  to  Be  Served  on  Sheriff  Having  Execution 

(Title  of  lower  court  and  cause.) 
(Venue.) 

I  hereby  certify  that  on  the   day  of   ,  191 .. ,  I  was  duly 

served  with  a  writ  of  error  from  the  supreme  court  in  the  above  entitled 
cause,  and  that  at  the  same  time  there  was  filed  in  my  office  a  bond  duly 
approved  for  a  stay  of  proceedings  upon  the  judgment  entered  in  said 
cause. 

A.  B.,  Clerk  of  the  circuit  court  for  the  county  of 

(Date.) 
To ,  Sheriff  of  said  County: 

Take  notice  that  by  virtue  of  the  writ  of  error  and  bond  mentioned  in 
the  foregoing  certificate,  all  further  proceedings  upon  the  execution  hereto- 
fore issued  in  said  cause  and  now  held  by  you  are  stayed. 

Yours,  etc., 

(Date.)  G.  H.,  attorney  for 

§  25.  Staying  proceedings  after  return  of  writ. 

After  the  return  of  a  writ  of  error,  the  circuit  court 
has  no  authority,  where  no  stay  bond  has  been  filed,  to 
allow  such  a  bond  to  be  filed  nunc  pro  tunc.  The  power 
to  grant  such  relief  after  the  return  of  the  writ  to  the 
supreme  court  is  in  that  court.^' 

§26.  Entitling  cause. 

In  entitling  causes  brought  into  the  supreme  court  by 
writ  of  error,  the  party  bringing  the  writ  of  error, 
whether  plaintiff  or  defendant  in  the  court  below,  was 

87  People  V.  Manistee  Circuit 
Judge,  33  Mich.  Ill;  Coding  v. 
Barnard,  159  Mich.  634. 


§  27  Error,  Writ  of  595 

styled  the  plaintiff  in  error  in  entitling  the  cause  in 
that  court,  and  the  other  party  the  defendant  in  error, 
the  name  of  the  plaintiff  in  error  being  placed  first. 
But,  by  a  rule  of  court  first  adopted  in  January,  1882, 
it  is  provided  that  hereafter  in  all  cases  brought  into 
the  supreme  court  for  the  purpose  of  reviewing  or  re- 
vising the  judgment,  order,  decree  or  action  of  any 
other  court,  tribunal  or  officer,  the  relative  position  of 
the  parties,  and  their  designation  as  plaintiffs,  peti- 
tioners, defendants  or  respondents,  shall  be  the  same  in 
this  court  as  in  the  court  or  before  the  tribunal  or  offi- 
cer whose  action  is  in  question;  but  they  may  further 
be  designated  as  appellants  or  appellees.'*  Error  in  en- 
titling the  case  in  the  supreme  court,  in  including  a 
party  as  to  whom  the  suit  was  discontinued,  is  imma- 
terial.^' 

§27.  Record. 

The  record  sent  up  includes  the  process,  pleadings, 
etc.,  in  the  cause,*"  and  also  the  bill  of  exceptions,  if 
any.     The  record  must  show  that  a  question  appellant 

88  Sup.  Ct.  Eule  3.  verdict  are  not  a  part  of  the  rec- 

39  Campau  v.  Brown,  48  Mich.  145.  ord.     Harvey  v.  McAdams,  32  Mich. 

*0  An  omission  in  the  record  of  472. 
the  regular  entry  as  to  the  impan-  Where  the  circuit  court  dismisses 
eling  of  the  jury  and  proceedings  an  appeal  and  thereafter  error  ig 
to  trial,  where  there  is  enough  to  brought,  the  papers  and  entries  re- 
show  very  clearly  that  a  jury  was  lating  to  the  order  of  dismissal  con- 
impaneled,  and  the  trial  proceeded  stitute  the  record  without  a  bill  of 
with,  and  that  the  omission  was  a  exceptions.  City  of  Flint  v.  Gen- 
clerical  mistake,  is  not  fatal.  Ken-  esee  Circuit  Judge,  146  Mich.  439. 
yon  v.  Woodward,  16  Mich.  326.  The  return  of  the  justice  to  the 

Affidavit  in  opposition  to  a  motion  writ  of  certiorari,  after  affirmance 
to  remand  the  record  for  correction,  in  the  circuit  court,  must  be  in- 
showing  a  document  not  put  in  evi-  eluded.  Zeller  v.  Harris,  23  Mich, 
dence  at  the  trial,  will  not  be  treated  286. 

as  a  part  of  the  record.     People  v.  Preparation,  printing  and  service 

Banhagel,  151  Mich.  40.  of     record,     see     Supreme     Court, 

Papers   filed   on   a   motion    for   a  §§  1416. 
perpetual  stay  of  proceedings  after 


596  Error,  Whit  ok  §  27 

desires  to  have  passed  on  actually  arose  and  was  de- 
cided in  the  lower  court,*^  and  that  objections  were  made 
and  an  exception  taken.**^  Where  the  record  discloses 
no  judgment,  the  writ  of  error  will  be  dismissed." 

§  28.  Amendment. 

The  supreme  court  has  no  authority  to  amend  the  rec- 
ords sent  up  from  inferior  tribunals,**  nor  can  the  record 
be  amended  by  stipulation  of  counsel."  But  it  may,  in 
a  proper  case,  compel  their  correction  by  the  court  be- 
low, by  mandamus.*^  The  court  cannot  strike  out  a 
bill  of  exceptions  on  proof  that  it  was  settled  without 
notice  to  appellee,*'  Where  an  amendment  was  made 
in  the  court  below  after  the  cause  was  removed  to  the 
supreme  court  by  writ  of  error,  but  no  further  return 
was  made  to  the  writ,  the  court  refused  to  entertain  a 
motion,  based  on  an  affidavit  of  such  amendment,  hold- 
ing that  it  could  only  be  informed  of  amendments  made 
after  the  record  was  sent  up,  by  a  further  return  to  the 
writ."  And  where,  six  months  after  errors  had  been 
assigned,  the  a])pellee  olitained,  without  leave  of  the 
supreme  court,  an  amendment  to  the  record  in  the  court 
below  with  a  view  to  obviate  the  errors  assigned,  and 
then  moved  for  an  order  for  a  further  return  to  bring 

41  Nelson  v.  (Jhcboygan  Nav.  Co.,  44  Swcetzcr  v.  Mead,  5  Mich.  33 ; 

44    Mich.    7.      Compare    Stewart    v.  Evans  v.  Norris,  6  Mich.  69;  People 

Grand    Rapids    &    I.    Ry.    Co.,    147  v.   Grand  Rapids  &  W.  Plank-Road 

Mich.  48.  Co.,  64  Mich.  618.     See  also  Federal 

48  Lamb   v.  Lippincott,   115  Mich.  Audit  Co.  v.  Sawyer,  196  Mich.  566. 
611.  The  supreme  court  has  no  power, 

43  Delaney       v.       Michigan      Elm  after  hearing,  upon  its  own  motion, 

Hooper    &    Lumber    Co.,    144    Mich.  to    correct   errors    contained   in    the 

351.  record.     People  v.   Grand   Rapids  & 

Otherwise    where    return    shows    a  W.    Plank-Road  Co.,  64  Mich.   618. 
judgment  entry  and  the  bill  of  ex-  46  Rabior  v.  Kelly,  194  Mich.  107. 

ceptions  as  printed  refers  to  a  judg-  46  See  Mandamus. 

ment.     Lingle   v.   Dalzell,   141    Mich.  47  Scribner  v.  Gay,  5  Mich.  511. 

.^99.  48  O  'Flynn  v.  Eagle,  7  Mieh.  306. 


§  28  Error,  AVrit  op  597 

up  the  amendment,  the  application  was  too  late;*^  and 
such  motion  would  not  be  granted,  if  there  were  no  ob- 
jection on  the  ground  of  laches.^"  When  such  an  amend- 
ment is  desired,  the  proper  practice  is  to  apply  to  the 
supreme  court  upon  an  affidavit  showing  the  reasons 
for  the  amendment,  to  remit  the  record  to  the  court  be- 
low for  that  purpose.  The  court  can  then  judge  whether 
the  case  is  a  proper  one  to  pennit  an  amendment  with 
a  view  to  affect  proceedings  already  taken  in  the  su- 
preme court. ^^ 

There  are  some  amendments  which  will  be  supplied 
in  any  court,  in  order  to  make  the  record  read  consist- 
ently, and  where  it  is  unnecessary  to  make  any  amend- 
ments in  form  at  all.  Such  amendments  are  supplied 
from  what  appears  on  the  face  of  the  record  itself.^'* 
In  all  other  cases  where  the  amendment  is  asked  for 
upon  matters  aliunde,  the  amendment  can  be  made  only 
in  the  court  below,  upon  a  remittitur  of  the  record  for 
that  purpose;"  and  no  obstacle  will  be  allowed  to  be 
thrown  in  the  way  of  permitting  such  amendments, 
within  a  reasonable  time,  whenever  it  is  made  to  ap- 
pear that  they  are  proper,  and  likely  to  be  made."  But 
after  the  cause  is  on  hearing,  and  six  months  after  the 
defect  is  known  to  the  party  who  claims  to  be  prejudiced 
by  it,  a  motion  for  that  purpose  is  too  late.^^  On  mo- 
tion the  writ  may  be  dismissed  and  the  record  will  be 
remanded  by  the  supreme  court  to  permit  appellant  to 
apply  for  an  order  extending  the  time  for  settling  a  bill 
of  exceptions,  where  the  lower  court  has  power  so  to 

49  0'Flynn    v.    Holmps,    7    Mich.  regarded    as   made.      Rioe    v.    Rank- 

454.  ans,    101    Mich.    378;    McKernau    v. 

60  0'Flynn  v.  Eagle,  8  Mich.  136.  Detroit    Citizens'    St.    Ry.    Co.,    138 

61  Id.     See  also  Bonine  v.   Gage,  Mich.  519. 

163  Mich.  288.  BSO'Flynn  v.  Eagle,  8  Mich.  136. 

53  Emery    v.    Whitwell,    6    Mich.  64  Farrand  v.  Bentley,  6  Mich.  281. 

474.      In    some   instances,    on   error,  65  Vcrplank  v.  ITall,  21  Mich.  469. 
amendments    of    pleadings    may    be 


598  Error,  Writ  of  §  28 

do,  in  order  that  a  new  writ  of  error  may  be  issued.^^ 
By  statute,  omissions,  imperfections,  variances  and 
defects  in  matter  of  form  contained  in  the  record,  plead- 
ings, process,  entries,  returns  or  other  proceedings  in 
the  cause,  and  any  variance  in  the  record  from  any 
process,  pleading  or  proceeding  in  the  cause,  and  all 
others  of  the  like  nature,  not  being  against  the  right 
and  justice  of  the  matter  of  the  suit,  and  not  altering 
the  issue  between  the  parties,  or  the  trial,  may  be  sup- 
plied and  amended  by  the  court  where  the  judgment 
was  given,  or  by  the  court  into  which  it  is  removed  by 
writ  of  error.^'^  However,  this  statute  authorizes  an 
amendment  in  the  supreme  court  to  save  a  judgment 
but  not  to  reverse  a  judgment.*^  Under  the  provisions 
of  the  statute  of  amendments,  it  is  the  duty  of  the  su- 
preme court,  as  well  as  of  the  trial  court,  to  make  such 
amendments  as  justice  requires,  having  due  regard  for 
the  rights  of  the  parties;  and  the  supreme  court  has 
treated  a  declaration  as  amended  so  as  to  sustain  the 
recovery  under  another  statute,  where  the  declaration 
sets  out  sufficient  facts  to  show  a  right  to  recover  under 
such  statute.^® 

§  29.  Assignments  of  error. 

The  necessity  for,  and  sufficiency  of,  assignments  of 
error  in  a  bill  of  exceptions  has  been  considered  in  an- 
other article ;  ^"  and  in  that  article  the  decisions  have 
been  collected  without  regard  to  whether  the  assign- 
ments of  error  were  in  connection  with  a  bill  of  excep- 
tions or  otherwise.  Suffice  it  to  state  that  the  necessity 
for  the  assignment  is  precisely  the  same  where  there  is 
no  bill  of  exceptions,  and  that  the  rules  as  to  the  suffi- 

66  Kaiser   v.   Detroit   United   Ry.,  69  Fernette  v.  Pere  Marquette  R. 
163  Mich.  109.                                                Co.,  175  Mich.  653,  675. 

67  See  Amendments,  etc.  60  See  Assignment  op  Errors. 

68  Johnson    v.    Muskegon    County, 
195    Mich.    722. 


§  31  Error,  Writ  of  599 

ciency  of  the  assignments  are  the  same.  To  this  rule, 
however,  there  is  one  exception  in  that  errors  assigned 
in  the  affidavit  for  certiorari  in  the  circuit  court  are 
sufficiently  assigned  for  review  by  the  supreme  court, 
on  a  writ  of  error,  to  review  the  judgment  rendered  in 
the  circuit  court  involving  error  so  assigned.^^ 

§30.  Notice  of  hearing-. 

After  the  writ  of  error  has  been  returned  to  the  su- 
preme court,  either  party  may  notice  the  cause  for  hear- 
ing. Such  notice  must  be  given  at  least  thirty  days  be- 
fore the  first  day  of  the  term  at  which  the  argument  is 
desired.^^ 

§31.  Procuring'  cause  to  be  placed  on  calendar. 

Writs  of  error  are  calendar  causes,  and,  to  be  heard 
at  any  term,  must  be  placed  on  the  calendar  for  that 
term.^^  The  priority  of  causes  on  the  calendar  as  first 
made  up  depends  upon  the  date  of  filing  notice  of  hear- 
ing with  the  clerk.  The  party  noticing  a  cause  for  hear- 
ing must,  at  least  twenty  days  before  the  first  day  of 
the  term  for  which  it  is  noticed  for  hearing,  give  no- 
tice to  the  clerk  to  place  the  cause  on  the  calendar  for 
the  term.  No  cause  can  be  entered  on  the  calendar  by 
the  clerk  until  the  return  of  the  writ  of  error,  nor  with- 
out the  notice  to  the  clerk  to  put  the  cause  on  the  cal- 
endar.^* 

Upon  filing  stipulation  with  the  clerk  not  later  than 
the  Saturday  before  the  first  day  of  the  term,  cases  may 
be  placed  lower  down  on  the  calendar  and  grouped  to 
suit  the  convenience  of  counsel.    After  such  re-arrange- 

61  Chicago  &  G.  T.  R.  Co.  v.  Camp-  prima  facie  sufficient  to  present  the 
bell,  47  Mich.  265.  proceedings  below.     Ilirsh  v.  Fisher, 

62  Sup.  Ct.  Rule  34.  138  Mich.  95. 
Objections  to  want  of  notice  may  63  Sup.  Ct.   Rule  43. 

be  waived,  where  the  ease  is  heard  64  Sup.  Ct.  Rule  44. 

without  objection  and  the  record  is 


600 


Error,  Writ  of 


§31 


merit  of  causes  by  the  clerk,  lioAvever,  no  further  changes 
can  be  made  by  counsel,  except  to  continue  or  place  at 
the  foot  of  the  calendar.®^ 

§32.  Dismissal  of  writ. 

The  writ  should  be  dismissed,  on  motion  of  apiDellee, 
where  there  are  defects  not  amendal)le  or  where  there 
is  some  reason  whv  the  merits  should  not  be  heard.®^ 


66  Sup.  Ct.  Rule  44. 

66  The  writ  will  be  dismissed 
where  the  record  fails  to  show  that 
a  bill  of  exceptions  was  settled  and 
signed  by  the  circuit  judge.  Daxa- 
son  V.  Valin,  142  Mich.  8.3. 

But  where  errors  are  assigned  un- 
der the  rule  of  court  providing  for 
a  case  where  no  bill  of  exception  is 
settled,  the  writ  should  not  be  dis- 
missed for  failure  to  settle  a  bill  of 
exceptions  or  case-made,  or  because 
no  notice  of  such  a  settlement  was 
given,  or  because  the  record  is  not 
signed  and  certified  by  the  circuit 
judge.  King  v.  Burden,  142  Mich. 
477. 

The  writ  will  not  be  dismissed  be- 
cause exhibits  referred  to  in  the  tes- 
timony are  not  in  the  record.  King 
v.  Burden,  142  Mich.  477. 

Wliere  the  assignments  of  error  are 
not  in  the  bill  of  exceptions,  but  the 
record  clearly  shows  that  tlie  ques- 
tion involved  was  fully  presented 
and  argued  before  the  trial  court, 
the  appeal  may  be  considered  with- 
out remanding  the  record  for  cor- 
rection. Coon  v.  Dennis,  111  Mich. 
450. 

Where  a  plaintiff  had  consented 
to  a  new  trial  on  the  stipulation  by 
two  of  the  three  defendants  in  the 
case,  that  the  judgment  should  be 
final,  a  writ  of  error  afterwards 
sued    out   by   the    three   jointly   was 


dismissed  on  motion;  and  it  was  held 
that  if  the  other  defendant  desired 
a  review  of  the  judgment,  he  should 
have  sued  out  a  sole  writ  on  his  own 
behalf.  Cole  v.  Thayer,  25  Mich. 
212. 

The  objection  that  writ  of  error 
was  sued  out  before  the  judgment 
was  entered,  cannot  be  made  where 
two  full  terms  have  intervened  since 
the  return  of  the  writ,  and  no  mo- 
tion to  dismiss  was  made.  McCa- 
hill  v.  Detroit  City  Ry.  Co.,  96  Mich. 
156. 

Objection  to  the  suing  out  of  a 
writ  of  error  by  counsel  is  waived, 
unless  made  by  motion  to  dismiss 
the  writ.  Hager  v.  Coup,  50  Mich. 
54. 

Where  the  prevailing  party  neg- 
lected to  enter  his  judgment  until 
after  the  return  day  of  a  writ  of 
error  which  had  been  taken  out,  but 
to  which  return  had  not  been  made, 
a  motion  to  dismiss  a  second  writ, 
sued  out  after  judgment  was  en- 
tered, should  bf  denied.  Hinckley 
v.  Washtenaw  Probate  Judge,  45 
Mich.  343. 

Objections  to  the  record  should  be 
made  at  the  beginning  of  the  term, 
and  not  by  separate  motions,  made 
on  different  motion  days,  to  dismiss 
the  writ,  and  strike  out  the  bill  of 
exceptions.  Spencer  v.  Fish,  43 
Mich.  226. 


§  33  Ehror,  AVrit  oi'  601 

A  motion  to  dismiss  the  writ  is  the  propei-  method  of 
raising  the  question  of  the  right  to  sue  out  the  writ,®''^ 
and  of  whether  the  writ  is  barred  by  hipse  of  time,^' 
and  of  whether  the  proper  persons  are  made  parties  to 
the  writ,^^  but  not  of  whether  the  writ  was  taken  out 
for  the  purpose  of  delay.'*'  Failure  to  serve  the  notice 
of  the  writ  of  error  upon  the  appellee  is  not  ground  for 
dismissal,  where  he  has  all  the  information  that  he 
would  have  received  from  a  notice,  and  the  writ  has 
been  filed  before  the  motion  for  dismissal  was  heard.'^^ 
A  motion  to  dismiss  the  writ  for  not  printing  the  record 
was  denied,  it  appearing  that  neither  party  had  ever 
noticed  the  case  for  hearing.'''^  Uncertainty  in  the  as- 
signments of  error  is  no  ground  for  dismissing  the 
writ,''  but  absence  of  any  assignments  is  ground.'* 

§  33.  For  failure  to  return  writ  or  assign  errors. 

If  an  appellant  fails  to  liave  the  writ  of  error  returned 
on  or  before  the  return  day  thereof,  or  to  assign  error 

It  is  proper  to  dismiss  a  writ  of  But  where  the  writ  is  sued  out  by 
error  with  costs  on  motion  of  ap-  one  of  two  defendants  in  the  names 
pellee,  notwithstanding  appellant  has  of  both,  and  the  defendant  not  join- 
withdrawn  his  writ  of  error  and  ing  files  his  election  not  to  prosecute 
given  notice  thereof,  on  objection  to  the  writ,  it  will  not  be  dismissed, 
the  settlement  of  a  bill  of  excep-  Spencer  v.  Fish,  43  Mich.  226. 
tions  on  the  ground  that  a  writ  of  And  a  motion  to  dismiss  the  writ 
error  did  not  lie.  IJllman  v.  San-  because  a  necessary  party  was  not 
del,  158  Mich.  396.  named  therein  cannot  be  made  after 

67  Hagar   v.    Coup,   50    Mich.    54;  judgment     in     the     supreme     court. 
Wanner   v.   Martin,   173   Mich.   503;  Powers  v.  Irish,  23  Mich.  429. 
Apsey  V.  DeYoung,  173  Mich.  426.  70  Detroit  Society,  etc.  v.  Detroit 

68  Teller  v.  Willis,  12  Mich.  268;  Society,   etc.,   167   Mich.   97. 

Bliss  V.  Caille  Bros.  Co.,  157  Mich.  VI  Woodmansie  v.  Hollon,  16  Mich. 

258;    Riley    v.    Detroit   United   Ry.,  379. 

163   Mich.  327;    Carney  v.   Baldwin,  72  Ldand   v.    Blair   Tp.,   97   Mich. 

95  Mich.  442.  612. 

69  Mills  V.  Bunce,  26  Mich.  101.  73  Teller  v.  Wetherell,  6  Mich.  4C. 
Objections   relating  to  parties  to  Compare   Mittelstadt   v.    Kelly,   202 

the  writ  of  error  must  be  taken  by       Mich.  524. 

motion  to  dismiss.     Sick  v.  Michigan  74  See  8  33,  poHt. 

Aid   Ass'n,   49   Mich.   50. 


602  Error,  Writ  of  §  33 

and  serve  copies  of  the  assignments  within  the  time  al- 
lowed for  that  i)urpose,  the  appellee  may  move  the  court 
to  have  the  writ  of  error  dismissed  for  want  of  prose- 
cution ;  "^^  and  the  court  will  grant  or  deny  the  motion 
on  such  terms  and  conditions  as  the  justice  of  the  case 
requires.'^ 

A  motion  to  dismiss  a  writ  of  error  for  the  failure  of 
the  appellant  to  have  it  returned  will  be  denied  if  the 
return  is  filed  before  the  motion  is  heard,  although  costs 
will  be  usually  awarded  to  the  moving  party.''  And, 
after  a  lapse  of  several  years,  a  writ  of  error  will  not 
be  dismissed  for  want  of  a  proper  return,  where  no  ex- 
cuse for  the  delay  is  shown.'^  A  motion  to  dismiss  for 
want  of  prosecution  will  be  denied,  where  neither  party 
has  noticed  the  case  for  hearing.'® 

The  supreme  court  will  not  relieve  an  appellant 
against  the  consequences  of  his  neglect  to  cause  the 
transcript  of  the  record  to  be  filed  within  the  time  re- 
quired, unless  the  neglect  is  fully  explained. ^°  And  it 
is  not  a  sufficient  excuse  that,  when  the  writ  of  error 
was  served,  the  clerk  of  the  court  below  promised  to 
make  out  the  transcript  and  deliver  it  within  the  time 
required,  and  that  this  promise  was  relied  upon  and  the 
neglect  occurred  in  consequence  of  the  clerk's  failure 
to  perform  it.^^  Especially  is  the  neglect  not  excused 
by  an  affidavit  which  states  that  the  appellant  expected 
the  clerk  to  make  the  return  in  due  time,  but  shows  no 

76  Sup.  Ct.  Rule  8;   Starkweather  77  Woodmansie  v.  Hollon,  16  Mieh. 

V.    Thorington's   Estate,    157    Mich.  379;    Babcock    v.    Twist,    16    Mich. 

513.  282;    Hill   v.    Hill,   112    Mich.   633; 

Motion  to  dismiss  a  writ  of  error,  Riley    v.    Detroit    United    Ry.,    163 

for  failure   to  procure  a  return   to  Mich.  327. 

the  writ  in  time,  will  be  granted  in  78  Wattles  v.  Warren,  7  Mich.  309; 

the   absence   of   a  valid   excuse   for  Boardman  v.  Taylor,  16  Mich.  62. 
delay,  wliere  the  case  does  not  call  79  Leland    v.    Township   of   Blair, 

for    indulgence    on    other    grounds.  97  Mich.  612. 
Came  v.  Hall,  7  Mich.  159.  80  Lathrop  v.  Hicks,  2  Doug.  223. 

76  Sup.  Ct.  Rule  9.  81  Lathrop  v.  Hicks,  2  Doug.  223. 


§  35  Ekrok,  Weit  of  603 

request  to  tlie  clerk  to  do  so  and  no  interview  with  him 
on  the  subject.'^  If  the  appellant  apprehends  that  he 
will  not  be  able  to  procure  the  return  of  the  writ  on  or 
before  the  return  day,  he  should  obtain  an  order  for  an 
extension  of  the  time. 

§  34.  Time  for  motion. 

Motions  to  dismiss  for  informalities  or  irregularities 
should  be  made  without  delay,  unless  the  delay  be  suf- 
ficiently excused,  and,  where  a  tenn  has  intervened,  the 
motion  will  be  denied,  unless  some  very  satisfactory 
reason  is  shown  for  the  delay.^'  After  judgment  in  the 
supreme  court,  it  is  too  late  to  move  to  dismiss  a  writ 
of  error  for  informalities  and  irregularities.'* 

Where  a  writ  of  error  is  not  taken  out  within  eighteen 
months,  no  jurisdiction  is  acquired  by  a  writ  subse- 
queixtly  taken  out,  and  therefore  a  motion  to  dismiss 
it ,  will  be  granted,  notwithstanding  failure  to  move 
promptly.'^ 

§35.  Motion  papers  and  notice  of  motion. 

The  motion  must  distinctly  state  the  ground  upon 
which  it  is  based,  and  if  it  fail  to  do  so,  it  will  not  be 
entertained  by  the  court.'^  Copies  of  affidavits  served 
with  notice  of  the  motion,  must  be  true  and  complete, 
including  the  jurat,  and,  if  defective,  the  motion  will 
not  be  heard.''  On  a  motion  to  dismiss  a  writ  of  error 
because  not  issued  within  the  statutory  time,  the  court 
may  accept  the  statements  in  the  affidavit  as  proof  of 

»8  Came  v.  Hall,  7  Mich.  159.  84  Powers  v.  Irish,  23  Mich.  429. 

83  Powers  v.  Irish,  23  Mich.  429 ;  86  Riley  v.  Detroit  United  Ry.,  163 

Evans     v.     Norris,     6     Mich.     69;  Mich.   327. 

O  'Flynn    v.    Eagle,    7    Mich.    306 ;  86  Jaquith  v.  Hale,  30  Mich.  163. 

Smith  V.  Mitchell,  9  Mich.  261;  Sick  87  Chesebro  v.  Chcscbro,  21  Mich. 

V.  Michigan  Aid  Ass'n,  49  Mich.  50;  506. 
Came  v.  Hall,  7  Mich.  159. 


604  Ehwoh,  AVaiT  of  §  35 

the  date  when  the  jiulgnieiit  was  rendered  where  the 
affidavit  is  not  disputed.®* 

Notice  of  a  motion  to  dismiss  a  writ  of  error  is  neces- 
saiy.'* 

On  motion  to  dismiss  the  writ  for  Avant  of  jurisdic- 
tion, the  appeUant  may  show  himself  by  affidavit  to 
come  within  the  exceptions  of  the  statute  barring  his 
writ.®"  But  the  question  whether  plaintiff  appeared  and 
argued  the  case  in  the  lower  court  or  consented  to  the 
judgment  there  entered,  cannot  be  raised  on  affidavit, 
nor  can  the  question  whether  a  previously  decided  prin- 
ciple is  applicable  to  errors  assigned.®* 

§  36.  Calendar  practice. 

The  calendar  practice  is  the  same  as  in  case  of  mo- 
tions in  general  in  the  supreme  court.®'^ 

Where  a  motion  to  dismiss  is  noticed  for  hearing  on 
a  certain  day  and  then  called  up,  it  cannot  be  taken 
upon  any  subsequent  day  and  term,  except  by  consent, 
unless  it  has  been  ordered  to  stand  over  to  such  subse- 
quent day.®^ 

§37.  Effect  of  dismissal. 

Dismissal  of  writ  of  error  leaves  the  judgment  on 
which  it  was  sued  out  operative  and  conclusive;®*  but 
it  does  not  preclude  the  suing  out  of  a  new  writ.®"    So 

88  Bliss    V.    Caille    Bros.    Co.,    157  92  See  Supreme  Couet. 

Mich.  258^  following  Teller  v.  Willis,  93  Ireland    v.    Rpalfling,    H    Mich. 

12  Mich.  268.  455. 

89  Scribner  v.  Dosemau,  5  Midi.  94  Hitchcock  v.  Pratt,  51  Mich. 
283.  263. 

So  a  motion  to  dismiss  a  writ  in  a  95  Kai.ser    v.   Detroit    United   Ry., 

cause  not  on  the  docket  of  the  term  163  Mich.  109. 

when  the  motion  is  made,  will  not  The  dismissal  of  the  writ  is  equiv- 

be    heard    without    notice.      Hill    v.  alent  to  a  nonsuit  and  does  not  bar 

Bowers,  21  Mich.  303.  the  issuance  of  a  new  writ.     Beller 

90  Teller  v.  Willis,  12  Mich.  268.  v.  Stevens,  40  Mich.  168. 

91  Tower  v.  Detroit  &  M.  R.  Co., 
7  Mich.  10. 


§40  Errok,  Wkit  of  605 

where  the  writ  is  dismissed  because  brought  by  one 
who  had  no  right  to  it,  a  party  to  the  cause  who  did  not 
join  in  the  writ  is  not  barred  from  suing  out  a  new 
writ.®® 

§  38.  Reinstatement  after  dismissal. 

After  dismissal  the  order  may  be  vacated,  and  the 
case  reinstated.®'^  Where  a  motion  is  made  to  reinstate 
a  case  at  a  term  following  its  dismissal  for  want  of 
prosecution,  the  party  making  the  motion  should  show 
himself  in  a  position  to  proceed  at  once  to  the  hearing, 
if  the  motion  should  be  granted.®'  And  where  a  case 
is  dismissed  for  failure  of  appellant  to  prosecute  the 
appeal,  a  motion  to  reinstate  the  cause  will  not  be 
granted  where  there  has  been  great  laches  in  moving.®* 

§  39.  Voluntary  dismissal  of  writ. 

An  appellant  will  always  be  allowed  to  dismiss  his 
writ  of  error  on  the  payment  of  costs;  ^  but  a  writ  of 
error  cannot  be  dismissed  before  it  has  been  returned 
into  the  supreme  court.  A  party  recovering  a  judg- 
ment in  the  lower  court  cannot  stipulate  in  the  supreme 
court  to  dismiss  the  suit  Avithout  the  consent  of  his  at- 
torneys, if  he  is  indebted  to  them  at  the  time  for  services 
in  the  case.^ 

§  40.  Who  may  allege  error. 

Persons  not  parties  cannot  allege  error  and  parties 
cannot  allege  errors  that  affect  only  other  persons  or 

96Taff  V.   Ilosmcr,   1-i   Mieli.   241).  98  Binglumi    v.    Parsons,    9    Mich. 

97  A    cause    which    had    been    dis-  li4. 

missed  for  want  of  prosecution  was  99<j;alinski   v.    Security   Fire    Ins. 

reinstated    by    the   court,    on   terms,  Co.,  147  Mich.  394. 

upon  an  affidavit  of  merits,  and  of  1  Birch  v.  Brown,  5  Mich.  31;  Ull- 

a  verbal  agreement  with  counsel  for  man  v.  Sandell,  158  Mich.  396.    See 

defendant  in  error,  giving  time,  not-  Kaiser   v.   Detroit   United   Ry.,   163 

withstanding  such  vcrl)al  agreement  Mich.   109. 

was  denied.  Scott  v.  Scott,  .'  Midi.  2  Kirby  v.  La  Dow,  102  Mich.  345. 
106. 


606  Error,  Writ  of  §  40 

parties.  The  party  successful  in  recovering  a  judgment 
cannot  avail  himself  of  any  error  in  the  rejection  of 
testimony.'  So  the  supreme  court  usually  does  not  con- 
sider alleged  eiTors  made  against  one  not  an  appellant.* 
It  is  the  general  rule  that  the  supreme  court  does  not 
review  errors  claimed  to  have  been  committed  against 
the  appellee.* 

A  party  who  has  not  brought  a  writ  of  error  nor 
joined  therein  cannot  allege  error  on  a  writ  brought 
by  a  coparty,®  and  the  appellant  cannot  allege  as  error 
matters  affecting  only  his  coparty  who  has  not  joined 
in  the  writ.' 

Appellant  cannot  assign  as  error  rulings  prejudicial 
to  others,  but  not  prejudicial  as  to  him.*  Furthermore 
only  the  objections,  which  he  himself  raises  can  be  con- 
sidered.' So  where  only  one  of  the  parties  to  an  action 
sued  out  a  writ  of  error,  the  other  party,  although  he 
joins  in  the  bill  of  exceptions,  is  not  entitled  to  insist 
upon  error  in  the  judgment,  favorable  to  the  party 
bringing  the  writ.^"  A  party  cannot  complain  of  error 
which  affects  only  a  coparty,  who  does  not  occupy  the 
position  of  an  appellant.*^  So  a  party  may  be  estopped 
by  his  conduct  to  allege  error.^^  A  party  at  whose  re- 
quest or  instigation  an  act  has  been  done,  a  theory 
adopted,  or  a  ruling  made,  cannot  thereafter  insist  in 

STuttle  V.  Briscoe  Mfg.  Co.,  190  50  Mich.  267;   Dresser  v.  Blair,  28 

Mich.  22.  Mich.    501;    Scotten    v.    Sutter,    37 

4Bowsher  v.  Grand  Rapids  &  I.  R.  Mich.  526;   Toledo  &  A.  A.  R.  Co. 

Co.,  174  Mich.  339.  v.  Johnson,  49  Mich.  148. 

6  Eames  v.  Barber,  192  Mich.  1, 16.  10  Haas   v.   Malto  Grapo   Co.,   148 

6  Pearson    v.    Wallace,   203    Mich.  Mich.  358. 

622.  11  Abbott    v.    Alsdorf,    19    Mich. 

7  Pearson  v.  Wallace,  203  Mich.  157;  English  v.  Carney,  25  Mich. 
622.  178;      Hanchett     v.     McQueen,     32 

•  Berry   v.   Lowe,    10   Mich.   9.  Mich.   22;    Oliver   v.   Shoemaker,   35 

9McCabe  v.  Farnsworth,  27  Mich.  Mich,  464;    Bickle  v.  Jameson,  146 

52;  Brown  v.  Bronson,  35  Mich.  415;  Mich.  483. 

Foster  v.  Malone,  45  Mich.  255 ;  Ta-  12  Ferris   v.    Loyal   Americans    of 

pert  V.  Detroit,  G.  H.  &  M.  Ry.  Co.,  the  Republic,  152  Mich.  314. 


§  40  Error,  Writ  of  607 

the  supreme  court  that  there  was  error  in  doing  as  he 
requested. 

It  is  the  general  rule  that  a  party  will  not  be  per- 
mitted to  avail  himself  of  errors  which  he  has  invited 
or  to  which  he  himself  is  a  party,^'  or-  which  he  has 
waived,  whether  by  some  act  or  omission  in  the  court 
below  or  since  the  removal  of  the  case  to  the  supreme 
court."  Thus,  where,  under  the  former  practice,  a  de- 
fendant did  not  elect  to  stand  upon  his  demurrer  when 
overruled,  but  pleaded  issuably  and  went  to  trial  on  the 
merits,  an  assignment  of  error  on  the  overruling  of  the 
demurrer  would  not  be  considered."  So,  one  who  has 
appeared  and  pleaded  to  the  merits  cannot,  on  writ  of 
error,  raise  any  objection  to  the  process  by  which  he 
was  sued,  or  even  to  the  absence  of  any  process  at  all; " 
and  formerly,  where  the  defendant,  at  the  close  of  the 
plaintiff's  evidence,  asked  the  court  to  direct  a  verdict 
in  favor  of  the  defendant,  but,  upon  the  refusal  of  the 
court  so  to  do,  introduced  testimony,  he  could  not,  upon 
writ  of  error,  have  any  advantage  from  such  refusal, 

13  Pardee  v.  Smith,  27  Mich.  33;  78  Mich.  587;  Van  Gallow  v.  Brandt, 
Culver  V.  Nester,  116  Mich.  191;  1G8  Mich.  642.  Present  rule,  see 
Saltmarsb  v.   Chicago,  etc.,  R.   Co.,      §  43,  post. 

122   Mich.   103 ;    Wheeler   v.   Jenni-  16  Baxter  v.  Woodward,  191  Mich, 

son,  120  Mich.  422;  Collins  v.  Michi-  379;    Miller  v.   Du  Val,   191   Mich, 

gan  Cent.  R.  Co.,  193  Mich.  303,  386;    Wiest   v.   Luyendyk,   73   Mich. 

For     instance,     a     party     cannot  661 ;     Taylor    v.    Adams,    58    Mich, 

complain  of  instructions  to  the  jury  187;   Eeed  v.  McCready,   170  Mich, 

which    are    substantially    in    accord-  532;  Pardee  v.  Smith,  27  Mich.  33; 

ance  with  instructions  given  at  his  Manhard  v.   Schott,  37   Mich.   234; 

own    request.      Mt.    Clemens    Sugar  Graham  v.  Cass  Circuit  Judge,  108 

Co.  V.  Grand  Trunk  R.  Co.,  200  Mich.  Mich.  425. 

33;  Collins  V.  Michigan  Cent.  R.  Co.,  But   see   Jud.   Act,   ch.   50,    §14; 

193    Mich.   303.  Comp.    Laws    1915,    §  13749,    which 

14  Mills  V.  Warner,  167  Mich.  would  seem  to  warrant  a  contrary 
619;  Niasly  v.  Detroit,  etc.,  R.  Co.,  rule  but  which  was  not  referred  to 
168  Mich.  676;  Moser  v.  White,  171  in  the  cases  cited  above,  so  far  as 
Mich.  105;  Gates  v.  Beebe,  170  Mich.  decided  since  its  enactment. 

107. 

16  Ashton  V.  Detroit  City  R.  Co., 


608  Krroh.  AVrit  ok  §40 

for,  however  erroneous  it  may  have  been,  he  was  con- 
sidered to  have  waived  tlie  error  by  introducing  evi- 
dence instead  of  standing  upon  his  right  to  have  the 
verdict  directed  in  liis  favor. ^"^  However,  now  by  statute 
it  is  provided  that,  upon  the  trial  of  any  case  in  the  cir- 
cuit courts,  the  defendant,  upon  the  conclusion  of  the 
plaintiff's  testimony,  may  request  the  court  to  direct 
the  jury  to  bring  in  a  verdict  for  the  defendant  or  make 
demurrer  to  the  evidence  without  resting  his  case  abso- 
lutely, and,  upon  the  refusal  of  the  court  to  grant  the 
motion,  will  have  the  benefit  of  an  exception  as  in  or- 
dinary cases  and,  without  waiving  such  exception,  may 
then  introduce  testimony  and  make  his  defense  upon 
the  merits."  So,  where  the  defendant  objects  to  the  in- 
troduction of  any  evidence  by  the  plaintiff  on  the 
ground  that  the  declaration  is  affected  by  a  misjoinder 
of  counts,  and  the  trial  court  erroneously  sustains  the 
objection,  whereupon  the  j^laintitt'  discontinues  his  suit 
as  to  part  of  the  counts,  lie  thereby  waives  the  error 
committed  by  the  court  and  deprives  himself  of  the 
right  to  avail  himself  of  it  in  the  appellate  court  on  writ 
of  error." 

It  seems  that  an  order  for  the  amendment  of  plead- 
ings is  not  reviewable  where  both  parties  conform  to  its 
terms,^°  but  the  payment  or  satisfaction  of  a  judgment 
is  no  bar  to  a  writ  of  error.'^^  Taking  out  a  writ  of  error, 
with  a  bill  of  exceptions,  and  filing  a  stay-bond,  is  not 
a  waiver  of  error  which  cannot  be  presented  by  bill  of 
exceptions.'^'^     Where  a  joint  writ  of  error  is  sued  out 

17  Kelso    V.    Woodruff,    88    Mich.  This   praPtieo    was    introduced   by 

299;    Morley  v.  Liverpool,  etc.,  Ins.  Pub.  Aet.s  1899,  No.  182. 

Co.,  85  Mich.  210;  Clow  v.  Plummer,  19  Hogsett  v.  Ellis,  17  Mich.  351. 

85  Mich.  250;  Denman  v.  Johnston,  20  Ruggles  v.  First  Nat.  Bank,  43 

85  Mich.  387;   Hinehman  v.  Weeks.  Mich.  192. 

85  Mich.  535.  21  Watson  v.  Kane,  31  Mich.  61. 

18Jud.    Act,    ch.    18,    88  56,    57;  22  Churchill      v.      Alpenn      Circuit 

Comp.   Laws   1915,   §n2fi28,   12()20.  .Tudge,  56  Mich.  536. 


§42 


Error,  Writ  of 


609 


by  three  defendants  jointly  sued,  the  writ  must  be  dis- 
missed where  two  of  the  defendants  were  precluded 
from  bringing  error  by  their  stipulation.^' 

§41.  Consolidation  of  cases. 

Where  each  party  sued  out  a  writ  of  error,  the  cases 
should  be  consolidated,  and  heard  together  in  the  su- 
preme court.^*  However,  even  where  all  the  parties 
consent,  it  has  been  held  not  permissible  to  consolidate 
an  appeal  and  a  writ  of  error  involving  practically  the 
same  facts  and  evidence  but  different  questions  of  law, 
where  the  parties  insist  upon  their  equitable,  legal  and 
technical  rights  in  both  proceedings.^^ 

§42.  Scope  of  review. 

No  question  will  be  considered  by  the  supreme  court 
which  is  not  raised  by  a  specific  assignment  of  error;  ^^ 


83  Cole  V,  Thayer,  25  Mich.  212. 

24  In  re  Saier's  Estate,  158  Mich. 
170.  See  also  Craig  v.  Ingham  Cir- 
cuit Judge,  171  Mich.  33. 

26  Stevens  v.  Stevens,  181  Mich. 
449. 

26  Andre  v.  Hardin,  32  Mich.  324; 
Waterman  v.  Waterman,  34  Mich. 
490;  Lymburner  v.  Jenkinson,  50 
Mich.  488;  Monroe  v.  Tt.  Wayne, 
etc.,  R.  Co.,  28  Mich.  272 ;  Fowler  v. 
Gilbert,  38  Mich.  292;  Polhemus  v. 
Ann  Arbor  Sav.  Bank,  27  Mich.  44; 
Larkin  v.  Mitchell  &  Rowland  Lum- 
ber Co.,  42  Mich.  296;  Hitchcock  v. 
Pratt,  51  Mich.  263;  Detroit,  etc., 
R.  Co.  V.  Forbes,  30  Mich.  165; 
Finch  V.  Karste,  97  Mich.  20;  Mor- 
gan V.  Lake  Shore,  etc.,  R.  Co.,  138 
Mich.  626;  Perry  v.  Detroit  United 
Ry.,  135  Mich.  515;  Jennison  v 
Haire,  29  Mich.  207;  Supe  v.  Fran 
cis,  49  Mich.  2G6;  Hitchcock  v 
Pratt,  51  Mich.  263;  Kehoe  v.  Allen 
92  Mich.  464;  Stevenson  v.  Wolt 
1  Abbott— 39 


man,  81  Mich.  200;  Graves  v.  Lyon 
Bros.  &  Co.,  110  Mich.  670;  Weist  v, 
Morloek,  116  Mich.  606;  Roberts  v. 
Smith,  115  Mich.  5;  Totten  v.  Bur- 
hans,  103  Mich.  6;  Shaw  v.  Saline 
Tp.,  113  Mich.  342;  Miller  v.  Michi- 
gan Cent.  R.  Co.,  123  Mich.  374;  In 
re  McNamar's  Estate,  166  Mich. 
451;  Beauerle  v.  Michigan  Cent.  R. 
Co.,  152  Mich.  345;  Muncie  Wlieel  & 
Jobbing  Co.  v.  Finch,  150  Mich. 
274;  Putnam  v.  Phoenix,  etc.,  Ins. 
Co.,  155  Mich.  134;  Muir  v.  Kalama- 
zoo Corset  Co.,  155  Mich.  441;  Peo- 
ple v.  Lewis,  166  Mich.  513;  Weber 
V.  Billings,  184  Mich.  119;  Pichler 
V.  De  Hate,  125  Mich.  247;  Wanner 
V.  Mears,  102  Mich.  554;  Detroit 
United  Ry.  v.  City  of  Pontiac,  193 
Mich.  466. 

But  see  Mittelstadt  v.  Kelly,  202 
Mich.  524. 

Wliat  assignments  are  sufficiently 
specific,  see  Assignments  of  Error. 


(ilO 


ElMtOl!,    WUIT-OK 


§42 


and  wlietluT  a  question  of  law  be  covered  by  an  assign- 
ment of  error  or  not,  it  will  not  be  considered  nnless  it 
is  apparent  upon  the  record."  Error  will  not  be  pre- 
sumed in  the  absence  of  an  afiirmative  showing.^'  The 
supreme  court  will  not  search  the  record  to  discover 
whether  ei'ror  was  comrnitted  by  the  trial  court,  but  it 
is  for  counsel  to  point  out  the  eri'ors  claimed  to  have 
been  committed  in  such  manner  tliat  llie  court  may  find 
the  objections  and  exceptions.^* 

The  supreme  court  is  not  confined  to  the  considera- 
tion of  the  grounds  for  the  decision  pointed  out  by  the 
lower  court. ^" 

Questions  not  raised  by  tlie  briefs  will  not  ordinarily 
be  considered.^^ 

Ordinarily  no  proceedings  in  a  case,  after  judgment 
is  perfected,  will  be  considered  on  a  writ  of  error  to 
review  such  judgment  ;^^  but  the  statute  has  changed 
this  rule  as  to  motions  for  new  trials. ^^    Where  actions 


27  People  V.  Allegan  Circuit  Judge, 
29  Mich.  487;  Pearsons  v.  Eaton,  18 
Mich.  79;  Peabody  v.  McAvoy,  23 
Mich.  526;  Millerd  v.  Beeves,  1  Mich. 
107;  Noble  v.  Bourke,  44  Mich.  193; 
Hedges  v.  Hibbard,  46  Mich.  551; 
People  V.  Cline,  44  Mich.  290;  Max- 
well V.  Bay  City  Bridge  Co.,  41  Mich. 
454;  Miller  v.  Hosier,  31  Mieh.  475; 
Dunkley  v.  City  of  Marquette,  157 
Mich.  339;  Bachinski  v.  Bachinski's 
Estate,  152  Mich.  693;  Silfer  v. 
Daenzer,  167  Mich.  362;  Eberts  v. 
Mt.  Clemens  Sugar  Co.,  182  Mich. 
449;  Crippen  v.  Fletcher,  56  Mich. 
386;  Monyhan  v.  Detroit,  etc., 
Plank-Road  Co.,  129  Mich,  549;  Du- 
vernois  v.  Kaiser's  Estate,  75  Mich. 
431;  Welch  v.  Palmer,  85  Mich.  310; 
Hopkins  v.  Bishop,  91  Mich.  328;  Ju- 
lius King  Optical  Co.  v.  Treat,  72 
Mich.  599;  Lamb  v.  Lippiucott,  115 
Mich.  611;  Tunnicliffe  v.  Bay  Cities, 


etc.,  R.  Co.,  107  Mich.  261;  Totten 
V.  Burhans,  103  Mich.  6;  Miller  v. 
Laehman,  117  Mich.  68;  Van  Wer- 
den  V.  Winslow,  117  Mich.  564;  Den- 
nison  v.  Van  Wormer,  107  Mich. 
461;  Griffin  v.  McKnight,  116  Mich. 
468;  McRae  v.  Garth  Lumber  Co., 
102  Mich.  488;  First  State  Bank  v. 
Day,  188  Mieh.  229. 

This  applies  to  stipulations  not  in 
the  record.  Hennes  v.  Charles  Heb- 
ard  &  Sons,  169  Mich.  670. 

28  See  §  54,  po.st. 

29  Couple-Gear  Freight  Wheel  Co. 
V.  Lake  Shore,  etc.,  R.  Co.,  196  Mich. 
429. 

SOTillotson  v.  Webber,  96  Mieh. 
144. 

31  See  Briefs. 

32  Moore  v.  Daiber,  92  Mich.  402 ; 
Hitchcock  V.  Hahn,  60  Mich.  459. 

33  See  8  49,  post. 


§43  Error,  Writ  of  611 

have  been  properly  consolidated,  the  writ  will  bring  up 
matters  preceding  the  consolidation.'*  Where  a  pro- 
ceeding is  brought  to  the  supreme  court  by  writ  of  error, 
and  there  is  no  cei-tificate  in  any  form  by  the  trial  judge 
of  what  purports  to  be  the  record,  and  no  judgment  has 
ever  been  entered,  the  case  is  not  in  a  condition  to  be 
reviewed.'^  Where  there  is  an  ajjpeal  to  the  circuit 
court  from  the  decision  of  two  commissioners  of  an  es- 
tate, and  a  similar  appeal  by  the  administrator  from  a 
decision  of  three  commissioners,  a  writ  of  error  to  the 
judgment  of  the  circuit  court  upon  the  latter  appeal 
will  not  bring  up  the  former  for  review.'^ 

§  43.  Interlocutory  orders. 

While  ordinary  interlocutory  orders  cannot  be  re- 
viewed by  suing  out  a  writ  of  error  to  review  them,  for 
the  reason  that  they  are  not  final  determinations,"  yet 
where  the  mling  is  properly  preserved  for  review  and 
is  not  waived,'*  such  orders  made  during  the  progress 
of  the  cause  may,  after  final  judgment,  be  reviewed  on 
a  writ  of  error  to  review  the  judgment.'^  And  under 
tlie  statute  decisions  adverse  to  the  party  making  a  mo- 
tion to  dismiss  or  quash  the  writ  or  declai'ation  upon 
jurisdictional  grounds,  or  issues  which  under  the  former 

34  Harris    v.    Swcctlaiid,   48   Midi.  An    order    denying    a    motion    for 

110.  leave  to  file  an  amended  declaration 

36  In  re  Vetter's  Estate,  162  Midi.  is   reviewable   after  judgment   by   a 

109.  writ   of  error,  where  tlie  proper  ex- 

36  Smith  v.  Lloyd's  Estate,  7()  ception  iuis  been  taken  by  including: 
Mich.  619.  the  proceedings  in  the  bill  of  excep- 

37  See  S  7,  ante.  tions.       Jones     v.     Wayne     Circuit 

38  See  S  40,  ante,  and  S  46,  post.  .Judge,  141  Mich.  408. 

39  Carton  v.  Day,  157  Mich.  4.'i ;  Where  a  plea  of  another  action 
Reynolds  v.  Mecosta  Circuit  Judge,  jicnding  is  sustained  a.s  to  a  count 
148  Mich.  470;  Flint  v.  Geneseo  Cir-  in  a  declaration,  a  review  of  the  or- 
cuit  Judge,  146  Mich.  4.39;  Cleveland  der  quasliing  the  count  may  bo  had 
V.  Rothschild,  i;{8  Mich.  90.  See  after  final  .iudgment,  by  a  writ  of 
also  Olds  Motor  Works  v.  Wayne  error.  I'pton  v.  (.erher,  l.'^6  Mich. 
Circuit  Judge,  164  Midi.  47n.  72. 


612  Error,  Writ  of  §  43 

practice  would  liave  been  raised  by  demurrer,  plea  to 
the  jurisdiction  or  other  dilatory  plea,  may  be  reviewed 
by  certiorari  forthwith  or  by  assignment  of  error  under 
a  writ  of  error  sued  out  to  review  the  final  judgment  in 
the  cause  in  case  such  party  shall  plead  over  and  a  final 
judgment  upon  the  merits  shall  be  rendered  against 
him."  Independent  of  such  statute,  where  there  is  no 
waiver,  if  the  court  below  takes  or  retains  jurisdiction, 
as  by  allowing  a  dilatory  appeal  or  refusing  to  quash  a 
summons  or  other  writ,  and  proceeds  to  final  judgment, 
the  jurisdictional  questions  as  well  as  those  arising 
upon  the  merits  of  the  case  may  be  reviewed  on  writ 
of  error.*^ 

§  44.  Discretion  of  lower  court. 

As  a  general  rule,  mere  questions  of  practice  in  re- 
spect to  matters  lying  within  the  discretionary  author- 
ity of  the  trial  court  will  not  be  reviewed  by  the  supreme 
court,  except  in  a  case  of  gross  and  palpable  abuse  of 
discretion,*^  as  where  an  amendment  to  a  declaration 
or  plea  is  refused  with  the  result  of  depriving  a  party 
of  his  cause  of  action  or  ground  of  defense,  in  which 
cases  the  error  will  be  reversed  on  writ  of  error.*'    Thus, 

40Jud.   Act,   ch.   50,    §14;    Comp.  McDonald  v.  Born,   121   Mich.  595; 

Laws  1915,   §  13749.  Jordan    v.    LeMessurier,    155    Mich. 

41  Mikkola  v.  Houghton  Circuit  188 ;  Gold  v.  Detroit  United  Ky.,  169 
Judge,  165  Mich.  583;  Michigan  Mich.  178;  Parsons  v.  Eaton,  18 
Mut.  Fire  Ins.  Co.,  112  Mich.  272;  Mich.  79;  Davis  v.  Bush,  28  Mich. 
Reed  v.  St.  Clair  Circuit  Judge,  122  432;  Noble  v.  Bourke,  44  Mich.  193; 
Mich.  153 ;  Valley  City  Desk  Co.  v.  Minrock  v.  Eureka  Fire  &  Marine 
Kent  Circuit  Judge,  139  Mich.  197;  Ins.  Co.,  90  Mich.  236;  Detroit  Tug, 
Steel  V.  Clinton  Circuit  Judge,  133  etc.,  Co.  v.  Wayne  Circuit  Judge,  75 
Mich.  695;  Roberts  v.  Lenawee  Cir-  Mich.  360;  Mahoney  v.  People,  43 
cuit  Judge,  140  Mich.  115;  Sharp  Mich.  39;  Nosa  v.  Munising,  etc.,  R. 
V.     Montcalm     Circuit     Judge,     144  Co.,  196  Mich.  104. 

Mich.    328;    Gifford    v.    Washtenaw  Order    allowing    intervention,    see 

Circuit  Judge,  189  Mich.  546.  Weatherby   v.    Kent    Circuit   Judge, 

42  Mann   v.   Tyler,   56   Mich.   564;       194  Mich.  46. 

In  re  Miner's  Estate,  201  Mich.  115;  43  Pangborn    v.    Continental    Ins. 

Helwig  V.  Lascowski,  82  Mich.  619;       Co.,  67  Mich.  683;  St.  Clair  Tunnel 


44 


Errok,  Writ  of 


613 


questions  relating  merely  to  the  order  of  proof,**  or  to 
the  propriety  of  the  methods  and  extent  of  cross-exam- 
ination,*^ or,  in  general,  to  the  amendment  of  plead- 
ings,*^ or  to  a  change  of  venue,*'  being  matters  within 
the  discretion  of  the  court,  ordinarily  will  not  be  con- 
sidered on  error.  For  the  same  reason,  the  supreme 
court  is  not  disposed  to  encroach,  except  in  a  veiy  plain 
case,  upon  the  province  of  the  trial  judge  whose  duty 
it  is  to  see  that  the  fair  limits  of  argument  are  not 
passed  and  that  a  proper  decorum  is  preserved  by  coun- 
sel as  well  as  others  who  take  part  in  judicial  proceed- 


48 


mgs 

However,  the  rule  has  been  stated  in  a  number  of 
cases,  especially  the  earlier  ones,  that  discretionary  rul- 


Co.  V.  St.  Clair  Circuit  Judge,  114 
Mich.  417;  Blackburn  v.  Alpena  Cir- 
cuit Judge,  136  Mich.  48;  City  of 
Detroit  v.  Wayne  Circuit  Judge, 
125  Mich.  634;  Skutt  v.  Kent  Circuit 
Judge,  136  Mich.  477;  Jones  v. 
Wayne  Circuit  Judge,  141  Mich. 
408;  Cleveland  v.  Rothschild,  138 
Mich.  90;  Daly  v.  Blair,  183  Mich. 
351. 

44  Torrent  v.  Damm,  66  Mich.  105 ; 
City  of  Muskegon  v.  S.  K.  Martin 
Lumber  Co.,  86  Mich.  625;  Dubois 
V.  Campau,  24  Mich.  360;  Morse  v. 
Hewett,  28  Mich.  481;  Hutchins  v. 
Kimmell,  31  Mich.  126;  Hulbert  v. 
Hammond,  41  Mich.  343;  Hoffman  v. 
Harrington,  44  Mich.  183;  Chase  v. 
Lee,  59  Mich.  237;  Helwig  v.  Las- 
cowski,  82  Mich.  619;  Church  v. 
John  Davis  &  Co.,  93  Mich.  477;  Su- 
perior Drill  Co.  V.  Carpenter,  150 
Mich.    262. 

46  Pelton  V.  MayhevF,  166  Mich. 
546;  Nutter  v.  Colyer,  180  Mich. 
107;  Burt  v.  Long,  106  Mich.  210; 
Gould  V.  Gregory,  126  Mich.  594; 
Herbeck  v.  Germain,  144  Mich.  157. 


46  Brown  v.  Moore,  32  Mich.  254; 
Pangborn  v.  Continental  Ins.  Co., 
67  Mich.  683;  People  v.  Wayne  Cir- 
cuit Judge,  41  Mich.  727;  Beneway 
V.  Thorp,  77  Mich.  181;  Shank  v. 
Woodworth,  111  Mich.  642;  Eaw- 
lings  V.  Fisher,  110  Mich.  19;  Baker 
V.  Michigan  Mut.  Protective  Ass'n, 
118  Mich.  431;  Wright  v.  Crane,  142 
Mich.  508. 

47  Silverstone  v.  London  Assur. 
Corporation,  176  Mich.  525;  Greeley 
v.  Stilson,  27  Mich,  153;  Gradley- 
Watkins  Co.  v.  Kalamazoo  Circuit 
Judge,  144  Mich.  142. 

48  Morton  v.  Detroit,  etc.,  R.  Co., 
81  Mich.  423;  People  v.  Gcoman,  110 
Mich.  244;  Lathrop  v.  Sinclair,  110 
Mich.  329;  Crane  v.  Ross,  168  Mich. 
623;  Meade  v.  Detroit,  etc.,  R.  Co., 
165  Mich.  489;  Hume  v.  Mason  & 
Hoge  Co.,  122  Mich.  346;  Chamber- 
lain V.  Lake  Shore,  etc.,  R.  Co.,  122 
Mich.  477;  Detroit  Nat.  Bank  v. 
Union  Trust  Co.,  158  Mich.  557; 
Mortensen  v.  Bradshaw,  188  Mich. 
436;  Feist  v.  Root,  189  Mich.  596. 


614  Error,  Writ  of  §  44 

ings  of  the  trial  court  will  not  he  re\-iewed.*^  But  in  a 
late  case  it  is  expressly  held  that  discretionary  orders 
are  reviewable,**'  and  in  most  of  the  cases  apparently 
to  the  contrary  it  was  probably  not  intended  to  hold  ab- 
solutely that  such  rulings  are  not  reviewable  in  any 
event,  but  tliat  what  is  meant  is  that  the  discretion  will 
not  ordinarily  be  reviewed,  i.  e.,  will  not  be  reviewed 
unless  the  discretion  is  clearly  abused. 

§  45.  Questions  of  fact. 

Under  the  statutory  provision  formerly  in  force  in 
this  state,  the  supreme  court  had  the  power  to  review 
cases  upon  writ  of  error  not  only  upon  the  law,  but  also 
upon  the  facts,  that  is,  upon  the  evidence  adduced  in 
the  court  below.*^  The  supreme  court  did  not  under 
this  provision  re-hear  the  case  upon  the  merits  in  the 
same  manner  as  in  the  lower  court,  but,  from  an  inspec- 
tion of  the  whole  case,  including  the  evidence  incorpo- 
rated in  the  record,  ascertained  whether  there  was  mani- 
fest error  either  in  the  conclusions  of  fact  or  in  respect 
to  the  law  applicable  to  them.*^  When  a  case  was  to 
be  reviewed  upon  the  evidence  as  well  as  upon  the  law, 
the  whole  evidence  was  required  to  be  made  a  part  of 
the  record,  so  that  the  court  might  judge  for  itself  what 
was,  and  what  was  not,  material.*'  The  court  would 
not  review  a  case  upon  the  facts  unless  all  the  evidence 
was  before  it.     The  decision  then  upon  the  facts  dis- 

49  Pearsons  v.  Eaton,  18  Mich.  79;  60  Daly  v.  Blair,  183  Mich.  351. 

Davis  V.  Bush,  28  Mich.  432;  DibWo  61  Laws  ]851,  pp.  311,  312;  Comp. 

V.  Rogers,  2  Mich.  404.    See  also  Lee  Laws   1857,   §  3438. 

&   Brewster   v.   Hardgrave,   3    Mich.  52  Hill    v.    Lafayette    Ins.    Co.,    2 

77,  84;  Detroit  &  M.  Ry.  Co.  v.  Van  Mich.  476;   Barman   v.  Carhartt,  10 

Steinburg,    17    Mich.    99;    White    v.  Mich.  338. 

Bailey,     10     Mich.     1-35;     Final     v.  63  King  v.   Mooro,   10  Mich.  538. 

Backus,    18    Mich.    218;    Greeley    v.  This  is  the  law  now.     See  Newell 

Stilson,  27  Mich.  153;  Bearse  v.  Al-  v.   Reid,   189   Mich.   174,   and   infra, 

drich,  40  Mich.  529.  this  section. 


§  45  Error,  Writ  of  615 

posed  of  the  case  and  a  new  trial  was  generally  not 
awarded.** 

By  the  amendment  of  1867  **  to  the  statutoiy  provi- 
sion referred  to,  the  power  of  the  supreme  court  to  re- 
view a  case  on  'svrit  of  error  upon  the  evidence  was 
taken  away,  and  thereby  the  scope  of  the  writ  as  a 
medium  for  the  correction  of  the  erroneous  judgment  of 
a  lower  court  was  limited  to  those  of  the  common  law 
writ  of  error  and  the  writs  coram  nobis  and  coram 
vobis.'^ 

An  apparent  exception  to  the  rule  that  the  supreme 
court  on  writ  of  error  would  not  review  a  case  upon 
the  facts,  that  is,  upon  the  evidence,  but  which,  how- 
ever, is  only  an  apparent,  and  not  at  all  a  real,  excep- 
tion," is  that  the  court  would  look  into  the  evidence 
to  ascertain  whether  there  was  any  evidence  to  support 
the  conclusions,  or  any  particular  conclusion,  of  fact 
reached  in  the  court  below.  In  such  case,  if  there  was 
any  evidence  to  support  a  conclusion  of  fact,  the  court 
would  not  disturb  it,  however  great  might  be  the  weight 
of  evidence  on  the  other  side,  and  however  thoroughly 
convinced  the  court  might  be  that  the  conclusion  was 
in  fact  erroneous;*^  but,   if  there  was  no  evidence  to 

64  Barman   v.    Carhartt,   10   Mich.  Donald,    40    Mich.    150;     Tyler    v. 

338,  Smith,  46  Mich.  292;  Eoger  Williams 

66  Laws  1867,  No.  142.  Ins.  Co.  v.  Carrington,  43  Mich.  252; 

66  Heimbach  v.  Weinberg,  18  Mich.  Niagara  Fire  Ins.  Co.  v.  De  Graff, 
48;  In  re  Wisner's  Estate,  20  Mich.  12  Mich.  124;  Elliott  v.  Van  Buren, 
128.  33  Mich.  49;  Youmans  v.  Heartt,  34 

67  In  re  Hoffman's  Estate,  183  Mich.  397;  Nicholson  v.  Dyer,  45 
Mich.  67.  Mich.   610;    De  Mill  v.  Moffatt,  49 

68  Sweetzer  V.  Mead,  5  Mich.  107 ;  Mich.  125;  Warner  v.  Mason,  50 
Ortmann  v.  Wilson,  23  Mich.  269;  Mich.  53;  Baylis  v.  Stout,  49  Mich. 
Peabody  v.  McAvoy,  23  Mich.  526;  215;  Beauchamp  v.  Saginaw  Min. 
Compton  V.  Blair,  27  Mich.  397;  Co.,  50  Mich.  163;  Wolf  v.  Irwin, 
Todd  V.  Davis,  32  Mich.  160;  Ball  84  Mich.  344;  Leonard  v.  Bcaudry, 
V.  Busch,  64  Mich.  336;  Filer  v.  80  Mich.  163;  Stevens  v.  Pendleton, 
Jenks,  38  Mich.  585;  Briggs  v  Mil-  94  Mich.  405;  In  re  Stebbins'  Es- 
burn,  40  Mich.  512;   Conely  v.  Mc-  tato,    94    Mich.    304;     Montross    v. 


616  Error,  Writ  of  §  45 

support  a  conclusion  of  fact,  the  court  would  hold  it 
erroneous  as  a  matter  of  law.**®  But  it  was  held  that, 
although  there  was  no  evidence  to  sustain  a  verdict  for 
the  plaintiff,  the  court  would  not  reverse  the  judgment, 
unless  the  defendant  had  requested  the  trial  court  to 
direct  a  verdict  for  the  defendant.^" 

By  statutory  provision  in  1893,^^  the  supreme  court 
was  vested  with  power  to  correct  the  refusal  by  the 
trial  court  of  a  motion  for  a  new  trial,  under  which  it 
reviews  the  question  whether  the  verdict  was  against 
the  clear  weight  of  the  evidence.  As  thus  enlarged,  the 
scope  of  the  writ  of  error  in  this  state  was  no  further 
modified  until,  with  the  taking  effect  of  the  Judicature 
Act,  the  power  was  conferred  to  consider  whether  the 
finding  of  facts  by  the  court  in  a  case  tried  without  a 
jury  was  against  the  clear  weight  of  the  evidence.^^  It 
may  therefore  be  stated  that,  with  the  exceptions  of 
errors  consisting  in  a  verdict  or  finding  of  facts  being 
against  the  clear  preponderance  of  the  evidence,  as 
stated  above,  the  supreme  court  will,  on  writ  of  error, 
consider  only  questions  of  law,  or,  conversely,  that,  with 


Eddy,  94  Mieh.  100;  Beal  v.  Pol 
hemus,  67  Mich.  130;  Montague  v 
Dougan,  68  Mieh.  98;  Warren  v 
Gutches,  71  Mieh.  407;  Delta  Lum 
ber  Co.  v.  Williams,  73  Mich.  86 
Thompson  v.  Honian,  77  Mieh.  134 
Dietz  V.  Bignall,  86  Mich.  292;  Lob 
dell  V.  Baldwin,  93  Mich.  569;  He 
cock  V.  Van  Dusen,  96  Mich.  573 
Morgan  v.  Botsford,  82  Mich.  153; 


351;  First  Nat.  Bank  v.  Walker,  115 
Mich.  434;  Tritt  v.  Hoover,  116 
Mich.  4;  Fuller  v.  Ehle,  116  Mich. 
13;  Meloehe  v.  Chicago,  etc.,  R.  Co., 
116  Mich.  69;  Painter  v.  Ledyard, 
109  Mich.  568. 

69  Clark  V.  Phelps  76  Mich.  564; 
First  Nat.  Bank  of  Allegan  v.  Grand 
Rapids,  etc.,  R.  Co.,  195  Mich.  1. 

eoWakely  v.   Johnson,  115   Mich. 


Noah  V.  Pierce,  85  Mich,  70;  Barnes  285. 

V.  Brown,  95  Mich.  576;   Schuler  v.  61  Pub.  Acts  1893,  No,  134;  How, 

Eckert,    90    Mich.    165;    Jacobia    v.  Stat.  (2nd  ed.)   12965;  Comp.  Laws 

Terry,  92  Mieh.  275;   Busch  V.  Wil-  1897,    §10504;     Jud.    Act,    ch.    18, 

cox,    82    Mich.    336;    Ferris   v.    Mc-  §63;  Comp.  Laws  1915,  §12635, 

Queen,  94   Mich.   367;   Freedman   v.  62  Jud.   Act,   ch.   18,    §15;    Comp, 

Campfield,    92    Mich.    118;    Phippen  Laws  1915,  §  12587. 
V.  Bay  Cities,  etc.,  R.  Co.,  110  Mich. 


§45 


Error,  Writ  of 


617 


the  exceptions  noted,  it  will  not  review  a  case  upon  the 
facts. 

Questions  of  fact  arising  upon  the  weight  of  the  evi- 
dence which  have  been  decided  by  the  verdict  or  find- 
ing will  not  be  reviewed  in  the  appellate  court,  except 
when  error  has  been  assigned  upon  the  refusal  of  the 
trial  judge  to  grant  a  new  trial  or  upon  the  finding  of 
facts  by  the  court  on  the  basis  that  the  finding  is 
against  the  clear  weight  of  the  evidence.  With  these 
exceptions,  the  supreme  court  will  not  weigh  the  evi- 
dence to  ascertain  if  the  verdict  of  the  jury  or  the  find- 
ing of  the  court  is  sustained  by  a  preponderance  of  evi- 
dence.^^   Except  as  stated,  it  is  only  where  there  is  no 


63  Compton  v.  Blair,  27  Mich.  397; 
Elliott  V.  Van  Buren,  33  Mich.  49; 
Young  V,  Taylor,  36  Mich.  25 ;  Gane 
V.  Heath,  36  Mich.  441;   Bodine  v. 
Simmons,    38    Mich.    682;    Payment 
V.    Church,    38    Mich.    776;    Ellis    v. 
Spaulding,   39  Mich.   366;    Miller  v. 
Petrie,  40  Mich.  657;  Locke  v.  Tut- 
tle,  41  Mich.  407;  Stockle  v.  Silsbee, 
41    Mich.    615;    Gates    v.    Fisk,    45 
Mich.  522 ;  Chatterton  v.  Parrott,  46 
Mich.  432;  Rider  v.  Kern,  46  Mich. 
455;    Hicks  v.  Lyle,  46  Mich.  488; 
Cuddy  V.  Horn,  46  Mich.  596;  Green 
V.  Gill,  47  Mich.  86;  Kane  v.  Stowe, 
50  Mich.  317;  McGraw  v.  Germania 
Fire  Ins.  Co.,  54  Mich.  145;  Parsons 
V.  Clark,  59  Mich.  414;  Beal  v.  Pol- 
hemus,   67   Mich.    130;    Robinson   v. 
Smith,  63  Mich.  350;  Krolik  v.  Gra- 
ham,  64  Mich.   226;   Kryger  v.  An- 
drews,   65    Mich.    405;    Witheral    v 
Muskegon    Booming    Co.,    68    Mich 
48;    Burch  v.  Woodworth,   68  Mich 
519;    Nelson   v.   Lumberman's   Min 
Co.,  65  Mich.  288;  Ortmann  v.  Wil 
son,  23  Mich.  269;   Peabody  v.  Mc 
Avoy,     23     Mich.     526;      Shotwell 
V.    Harrison,    30    Mich.    179;    Hub- 


bardston     Lumber     Co.     v.     Bates, 

31  Mich.     158;      Todd     v.     Davis, 

32  Mich.  160;  Webber  v.  Don- 
nelly, 33  Mich.  469;  Gillan  v.  Boyn- 
ton,  36  Mich.  236;  Thatcher  v.  St. 
Andrew's  Church,  37  Mich.  264;  Sly 
V.  Freeman,  38  Mich.  689;  Johnson 
V.  Crispell,  43  Mich.  261;  Farrington 
V.  Sexton,  43  Mich.  454;  Neumann 
V.  Calumet  &  Hecla  Min.  Co.,  57 
Mich.  97;  Montague  v.  Dougan,  68 
Mich.  98;  Lovell  v.  Willard,  28 
Mich.  346;  Hyler  v.  Nolan,  45  Mich. 
357;  Wolf  V.  Irwin,  84  Mich.  344; 
Dehring  v.  Comstock,  78  Mich.  153 ; 
Painter  v.  Ledyard,  109  Mich.  568; 
Cliilds  V.  Nordella,  116  Mich.  511; 
Morse  v.  Blanchard,  117  Mich.  37; 
Fuller  V.  Ehle,  116  Mich.  13;  Boyle 
V.  Walsh,  105  Mich.  237;  Hanish  v. 
Kennedy,  106  Mich.  455;  Crockett 
V.  Bearce,  104  Mich.  257;  Cole  v. 
Shaw,  103  Mich.  505;  Milaehe  v. 
Chicago,  etc.,  R.  Co.,  116  Mich.  69; 
Littleson  v.  Martindale,  111  Mich. 
675;  Broughton  v.  Jones,  121  Mich. 
462;  Boardman  v.  Boozewinkle,  120 
Mich.  320;  Congdon  v.  Bailey,  121 
Mich.    570;    Baker    v.    Temple,    160 


618 


Error,  AVrit  of 


§45 


evidence  to  sustain  a  verdict  or  a  finding  of  fact  tliat  the 
supremo  court  will  overturn  it ;  ^*  and  if  there  be  any 
evidence  to  sustain  it,  however  slight  and  however  man- 
ifestly it  is  against  the  weight  of  the  evidence  in  the 
case,  it  will  be  conclusive  as  to  the  facts  which  it  de- 
termines.^* 


Mich.  .318;  Eandall  v.  Evening  News 
Ass'n,  101  Mich.  561;  Lathrop  y. 
Sinclair,  110  Mich.  329. 

64  Drake  v.  Lake  Shore,  etc.,  R. 
Co.,  69  Mich.  168;  Nelson  v.  Stuart, 
174  Mich.  127;  Baumier  v.  Antian, 
79  Mich.  509;  Clark  v.  Phelps,  76 
Mich.  564;  Cragin  v.  Gardner,  64 
Mich.  399;  Lamoreaux  v.  Creveling, 
103  Mich.  501;  Holcomb  v.  Sayers, 
173  Mich.  238;  Darling  Milling  Co. 
V.  Chapman,  131  Mich.  684;  In  re 
Hoffman's  Estate,  183  Mich.  67; 
Know'lson  v.  Friar,  184  Mich.  464; 
Draggo  V.  West  Bay  City  Sugar  Co., 
144  Mich.  195;  Van  Slyck  v.  Arse- 
nau,  140  Mich.  154;  Spaeek  v. 
Schaub,  140  Mich.  212;  Crosson  v. 
Vogt,  130  Mich.  482;  Converse  v. 
Wallace,  125  Mich.  272;  Burgess  v. 
Stribling,  134  Mich.  33  ;  Crusoe  Bros. 
Co.  V.  Kudner,  136  Mich.  583;  Wil- 
liam Barie  Dry  Goods  Co.  v.  Casler, 
138  Mich.  172;  Darling  Mill  Co.  v. 
Chapman,  131  Mich.  684;  Heineman 
V.  Sullivan,  127  Mich.  682;  Detroit, 
etc.,  R.  Co.  V.  Detroit  Common  Coun- 
cil, 125  Mich.  673;  Fuller  v.  Ehle, 
116  Mich.  13;  Cleland  v.  Qark,  123 
Mich.  179;  Scofield  v.  Farmer,  125 
Mich.  470;  Dimmock  v.  Cole,  130 
Mich.  601. 

65  Filer  v.  .Tenks,  38  Mich.  585; 
LoveU  V.  Willard,  28  Mich.  346; 
Shotwell  v.  Harrison,  30  Mich.  179; 
Thompson  v.  Holman,  77  Mich.  134; 
Lobdell  v.  Baldwin,  93  Mich.  569; 
Franks    v.    Stevens,    82    Mich.    192; 


Todd  v.  Davis,  32  Mich.  160;  Kling 
V.  Fries,  33  Mich.  275;  Tower  v. 
Detroit,  etc.,  R.  Co.,  34  Mich.  328; 
Clapp  V.  Born,  41  Mich.  152 ;  O  'Con- 
nor V.  Beckwith,  41  Mich.  657;  John- 
son V.  Crispell,  43  Mich.  261 ;  Green 
V.  Gill,  47  Mich.  86 ;  Edwards  v.  Nel- 
son, 51  Mich.  121;  Tillman  v.  Fuller, 
13  Mich.  113;  Hubbardston  Lumber 
Co.  v.  Bates,  31  Mich.  158;  Conely 
v.  McDonald,  40  Mich.  150;  Roger 
Williams  Ins.  Co.  v.  Carrington,  43 
Mich.  252 ;  Tyler  v.  Smith,  46  Mich 
292;  Briggs  v.  Milbum,  40  Mich 
512;  Dehring  v.  Comstock,  78  Mich 
153;  Wolf  v.  Irwin,  84  Mich.  344 
Leonard  v.  Beaudry,  80  Mich.  163 
Barnes  v.  Brown,  95  Mich.  576 
Stevens  v.  Pendleton,  94  Mich.  405 
Freedman  v.  Campfield,  92  Mich 
118;  Skeels  v.  Snow,  162  Mich.  561 
Williams  v.  Merritt,  152  Mich.  621 
Neumann  v.  Calumet  &  Hecla  Min 
Co.,  57  Mich.  97;  Ferris  v.  McQueen 
94  Mich.  367;  Burch  v.  Wilcox,  82 
Mich.  336;  Balch  v.  Grand  Rapids, 
etc.,  R.  Co.,  78  Mich.  654;  McBroom 
V.  Cheboygan  Brewing  &  Malting 
Co.,  162  Mich.  323;  Whenting  v. 
Torrent,  75  Mich.  309;  Montrose  v. 
Eddy,  94  Mich.  100;  Goodwin  v. 
Union  Ins.  Co.,  163  Mich.  41 ;  In  re 
Corby's  Estate,  154  Mich.  353;  Mas- 
tenbrook  v.  United  States  Accident 
Ass'n,  154  Mich.  16;  Buckout  v. 
Browne,  160  Mich.  460;  Hindman  v. 
Friedrich,  163  Mich.  655;  Edgerly  v. 
Ladies   of   Modern   Maccabees,    17.') 


§45 


Error^  Writ  of 


61^ 


Unless  the  record  purports  to  contain  all  of  the  evi- 
dence pertaining  to  the  fact  which  is  alleged  to  be  un- 
sustained  by  any  evidence,  the  question  will  not  be  con- 
sidered at  all,  but  it  will  be  presumed  that  there  was 
evidence  to  establish  every  fact  essential  to  support  tlie 
verdict  or  finding.^^ 

If  the  case  was  tried  before  a  jury,  the  scope  of  the 
review  of  the  sufficiency  of  the  evidence,  where  the  suf- 
ficiency is  preserved  for  review  by  a  motion  for  a  new 
trial  and  an  exception  to  the  order  overruling  the  mo- 
tion, is  limited  to  determining  whether  the  verdict  is 


Mich.  28;  Talge  Mahogany  Co.  v. 
Lindner  Interior  Mfg.  Co.,  179  Mich. 
606;  Lobdell  v.  Baldwin,  93  Mich. 
569;  M.  A.  True  Printing  &  En- 
graving Co.  V.  Perkins,  73  Mich. 
624;  Botsford  v.  Sweet,  49  Mich. 
120;  Michigan  Trust  Co.  v.  Fox,  192 
Mich.  699;  Cox  v.  Eailway  Conduc- 
tors', etc.,  Ass'n,  194  Mich.  213; 
First  Nat.  Bank  of  Allegan  v.  Grand 
Rapids,  etc.,  R.  Co.,  195  Mich.  1 ; 
Bransfield  v.  Wallace,  195  Mich.  41. 
66  Manning  v.  Bresnahan,  63  Mich. 
584;  People  v.  Cline,  44  Mich.  290; 
Stevens  v.  Rose,  69  Mich.  259 ;  Jenks 
V.  Brown,  38  Mich.  651;  Berry  v. 
Monroe,  57  Mich.  187;  Grosvenor 
V.  Ellis,  44  jMich.  452;  Randall  v. 
Randall,  37  Mich.  563;  Freese  v. 
Arnold,  99  Mich.  13;  Boyer  v.  Soules, 
105  Mich.  31;  Conger  v.  Flint,  etc., 
R.  Co.,  86  Mich.  76;  Mason  &  Ham- 
lin Co.  V.  Gage,  119  Mich.  361;  Mor- 
ris V.  Hall,  124  Mich.  170;  Lasley 
V.  Preston,  157  Mich.  66;  Haney  v. 
Village  of  Pinekncy,  155  Mir-h.  656; 
Scotten  V.  Sutter,  37  Mich.  526;  Carr 
V.  McCarthy,  70  Mich.  258;  Hoffman 
V.  Pope's  Estate,  74  Mich.  235; 
Hayes  v.  Homer,  36  Mich.  374; 
Sehultz  v.  Guldenstein,  144  Mich.  636; 
Wicks  v.  Ross,  37  Mich.  464;   Gray 


V.  Howard,  12  Mich.  171;  Young  v. 
Taylor,  36  Mich.  25;  Barnes  v.  Mich- 
igan, etc.,  R.  Co.,  54  Mich.  243; 
Wood  V.  Lake  Shore,  etc.,  R.  Co., 
49  Mich.  370;  Van  Werden  v.  Wins- 
low,  117  Mich.  564;  Vyne  v.  Glenn, 
41  Mich.  112;  Goldsmith  v.  Lichten- 
berg,  139  Mich.  163;  Burton  v.  Va- 
riety Iron  Works,  126  Mich.  140; 
Metz  v.  People's  Sav.  Bank,  129 
Mich.  320;  Marvin  v.  Bowlby,  135 
Mieh.  640;  Bevier  v.  Wright,  30 
Mich.  484;  Garver  v.  Bement,  69 
Mich.  149 ;  O  'Connor  v.  Backwith, 
41  Mich.  657;  Fowler  v.  Gilbert,  38 
Mich.  292;  Saunders  v.  Closs,  117 
Mich.  130 ;  First  Nat.  Bank  v.  Shue, 
119  Mich.  560;  Rumney  v.  Detroit, 
etc..  Cattle  Co.,  129  Mich.  644;  Cap- 
per &  Bertsch  Leather  Co,  v,  Pres- 
ton Nat.  Bank,  114  Mich.  263;  Bond 
v.  McMahon,  94  Mich.  557;  Cannon 
v.  Mclntyre,  140  Mich.  24. 

Construction  of  certificate  to  bill 
of  exceptions  that  "it  has  been  made 
sufficiently  full  and  complete  so  that 
the  supreme  court  on  writ  of  error 
may  by  going  over  the  same  be  able 
to  make  an  examination  of  the  en- 
tire case,"  see  Newell  v.  Reid,  189 
Mich.   174. 


620  Error,  Writ  of  §45 

against  the  ''overwhelming"  weight  of  the  evidence  or 
''clearly  against  the  great  weight"  of  the  evidence,  and 
in  connection  with  such  decision  it  must  be  remembered 
that  the  jury  were  in  a  better  position  to  determine  the 
credibility  of  the  witnesses  and  also  the  trial  judge  in 
ruling  on  the  motion  for  the  new  trial,  both  of  which 
had  the  advantage  of  seeing  the  witnesses  on  the  stand. 
It  must  appear  that  the  verdict  is  clearly  against  ^'  the 
weight  of  evidence,  to  w^arrant  a  reversal,^*  and  the  ver- 
dict will  not  be  disturbed  merely  because  the  supreme 
court  might  reach  a  different  result  on  the  facts  than 
did  the  jury.®®  In  other  words,  if  the  verdict  is  based 
on  decidedly  or  sharply  conflicting  evidence,  ordinarily 
it  will  not  be  disturbed.'" 

As  to  reviewing  the  sufficiency  of  the  evidence  where 
the  trial  is  by  the  court  without  a  jury  the  governing 
rules  are  as  follows:  (1)  if  no  exception  is  taken  to 
the  findings  of  facts  on  the  ground  that  they  are  against 
the  clear  weight  of  evidence,  then  the  evidence  pro  and 
con  will  not  be  weighed  but  the  only  inquiry  will  be  as 
to  whether  there  is  any  evidence  to  sustain  the  findings 
of  the  court ;''^^  (2)   if  an  exception  has  been  taken  to 

67  Walsh  V.   Lake   Shore,  etc.,  R.  analyze    the    testimony.      Krouse    v. 
Co.,  185  Mich.  177;  Druck  v.  Antrim  Detroit  United  Ry.,  170  Mich.  438. 
Lime  Co.,  177  Mich.  364.  Illustrations   of   reversals   of   ver- 

68  Cornell  v.  Fidler,  194  Mich.  diets  by  supreme  court  as  against 
509;  MeGavock  v.  Ducharme,  192  weight  of  evidence,  see  Bernard  v. 
Mich.  98;  Reed  v.  McCready,  170  Grand  Rapids  Paper  Box  Co.,  170 
Mich.  532;  Fike  v.  Pere  Marquette  Mich.  238;  Bosek  v.  Detroit  United 
R.  Co.,  174  Mich.  167.  Ry.,  175  Mich.  8. 

Must  be  ' '  manifestly  against  the  69  Faulkner    v.    Parish    Mfg.    Co., 

clear  weight  of  the  evidence. ' '  Pach-  201    Mich.    182 ;    Krouse   v.   Detroit 

uczynski  v.   Detroit   United  R.   Co.,  United  Ry.,  170  Mich.  438. 

202  Mich.  594.  70  Johnston  v.  Cornelius,  200  Mich. 

In  a  personal  injury  case  it  was  209;   Vincent  v.  Heenan,  194  Mich, 

said  that  a  verdict  for  plaintiff  will  316. 

not  be  disturbed  unless  so  palpably  71  Reese  v.  Dyer,  199  Mich.  204; 

wrong  as  to  force  the  conviction  that  Plankinton    Packing    Co.    v.    Berry, 

it  was  the  result  of  either  passion  or  199    Mich.    212,    and    see    Vebdicts 

prejudice  or  a  dense  incapacity  to  and  Findings. 


§46 


Error,  Writ  of 


621 


findings  of  fact  on  the  ground  that  they  are  against  the 
clear  weight  of  evidence,  then  the  supreme  court  will 
review  the  evidence,  provided  it  is  all  in  the  bill  of  ex- 
ceptions, but  will  reverse  only  where  the  findings  are 
against  the  overwhelming  weight  of  evidence.'^'^ 


§46. 


Questions  not  urged  in  the  trial  or  lower  court 


or  at  the  trial. 

No  question  of  law  can  be  considered  on  review  in  the 
supreme  court  which  was  not  brought  to  the  attention 
of  and  passed  upon  by  the  court  below.''^^  Accordingly, 
theories  of  the  cause  of  action  or  of  the  defense  ad- 
vanced or  objections  raised  for  the  first  time  in  the  su- 
preme court  will  not  be  considered,'*  especially  when 


72  Simmer  v.  Cutter's  Estate,  194 
Mich.  34.  See  also  Oudersluys  v. 
Carstens,  194  Mich.  521. 

73  Questions  not  raised  in  the  trial 
court  cannot  be  considered  by  the 
supreme  court  even  on  its  own  invi- 
tation. Walsh  V.  Lake  Shore,  etc., 
R.  Co.,  185  Mich.  177. 

74  Williams  v.  Green,  201  Mich. 
202;  Hamilton  v.  Ames,  74  Mich. 
298;  Canton  v.  Grinnell,  138  Mich. 
590;  Cooper  v.  City  of  Big  Rapids, 
67  Mioh.  607;  Roepeke  v.  Michigan 
Cent.  R.  Co.,  100  Mich.  541;  Cole- 
man v.  Robbing,  146  Mich.  333; 
Busch  v.  Wilcox,  82  Mich.  336;  Ma- 
lachiski  v.  Stellwagen,  85  Mich.  41 
Wardle  v.  Cummings,  86  Mich.  395 
Needham  v.  King,  95  Mich.  303 
Shippy  V.  Village  of  Au  Sable,  85 
Mich.  280;  Slater  v.  Chapman,  67 
Mich.  523;  Miller  v.  Hanley,  94 
Mich.  253;  Ellis  v.  Whitehead,  95 
Mieh.  105;  Kinney  v.  Folkerts,  84 
Mich.  616;  Gill  v.  De  Armant,  90 
Mich.  425;  Stevenson  v.  Woltman, 
81  Mich.  200;  Wright  v.  Weinmis- 
ter,  87  Mich.  594;  Lane  v.  Pere  Mar- 


quette Boom  Co.,  62  Mich.  63 ;  Win- 
chester V.  King,  48  Mich.  280;  Ho- 
gelskamp  v.  Weeks,  37  Mich.  422; 
People  V.  Smith,  42  Mich.  138; 
Howry  v.  Eppinger,  34  Mich.  30; 
Ward  V.  Ward,  37  Mich.  253 ;  Wicks 
V.  Ross,  37  Mich.  464;  Allen  v.  Duf- 
fle, 43  Mich.  1;  Craeger  v.  Wright 
School  District,  62  Mich.  101;  Riv- 
ard  V.  Rivard,  109  Mich.  98;  Frank- 
lin Min.  Co.  V.  Harris,  24  Mich.  115; 
Timmerman  v.  Bidwell,  62  Mich. 
205;  Van  Kleek  v.  Eggleston,  7 
Mich.  511 ;  Waterman  v.  Waterman, 
34  Mich.  400;  Doty  v.  Gillett,  43 
Mich.  203;  Gott  v.  Brigham,  41 
Mich.  227;  Wells  v.  Scott,  4  Mich. 
347;  Tower  v.  Lamb,  6  Mich.  362; 
Mahiat  v.  Codde,  106  Mich.  387; 
Canfield  v.  City  of  Jackson,  112 
Mich.  120;  Hoffman  v.  Pack,  Woods 
&  Co.,  114  Mich.  1;  Barbier  v. 
Young,  115  Mieh.  100;  Tunnicliffe 
V.  Bay  Cities,  etc.,  R.  Co.,  107  Mich. 
261;  Wolf  v.  Holton,  110  Mich 
166;  Ranson  v.  Western,  110  Mich. 
240;  Grove  v.  Youell,  110  Mich.  285; 
Little   V.   Williams,   107   Mich.   652; 


G22 


EnKOK,  Writ  of 


H6 


the  objection  might  have  been  obviated  by  an  amend- 
ment or  otherwise  in  the  trial  court  '^  or  concerns  a  mere 
irreguhirity  in  the  mode  of  procedure."'^  And,  on  the 
same  principle,  even  though  an  objection  was  raised  in 


Bohenfohr  v.  Bush,  117  Mich.  444; 
I>ynch  V.  Johnson,  109  Mich.  640; 
Wakely  v.  Johnson,  115  Mich. 
28'>;  Gregg  v.  Fox,  117  Mich.  495; 
Ruttcr  V.  Collins,  103  Mich.  143; 
Barnette  v.  Farmers'  Mut.  Fire  Ins. 
Co.,  115  Mich.  247;  Milliken  v.  City 
of  Corunna,  110  Mich.  212;  Weiser 
V.  Welch,  112  Mich.  134;  People  v. 
Tice,  115  Mich.  219;  John  Hutchin- 
son Mfg.  Co.  V.  Pinch,  107  Mich.  12 ; 
Tyler  v.  Nelson,  109  Mich.  37;  Wie- 
rengo  v.  American  Fire  Ins.  Co.,  98 
Mich.  621;  Byerson  v.  Wayne  Cir- 
cuit Judge,  114  Mich.  352;  Ella  v. 
Boyce,  112  Mich.  552;  C*lark  v. 
O'Rourke,  111  Mich.  108;  Kloek  v. 
Pack,  112  Mich.  670;  Cleland  v. 
Clark,  111  Mich.  336;  Mower  v.  Ver- 
planke,  105  Mich.  398;  Vaughn  v. 
McFadyon,  110  Mich.  234;  Neal  v. 
Neal,  181  Mich.  114;  Moore  v. 
Thompson,  108  Mich.  283;  Little  v. 
Mills,  98  Mich.  423;  Thomas  v.  Ann 
Arbor  K.  Co.,  114  Mich.  59;  IJeoplc 
V.  Luby,  99  Mich.  89;  People  v. 
Shelters,  99  Mich.  333;  Rogers  v. 
Ferris,  107  Mich.  126;  Hewitt  v. 
Morley,  111  Mich.  187;  Money- 
weight  Scale  Co.  v.  David,  180  Mich. 
8;  Habitz  v.  Wabash  R.  Co.,  170 
Mich.  71;  Dahrooge  v.  Sovereign 
Fire  Ins.  Co.,  175  Mich.  248;  Walsh 
V.  Lake  Shore,  etc.,  R.  Co.,  185  Mich. 
177;  Jeup  v.  Winship,  182  Mich. 
231;  Aldrich  v.  J.  Calvert's  Sons, 
186  Mich.  469;  Brown  v.  O'DonncU, 
123  Mich.  100;  Lamb  v.  Rathburn, 
118  Mich.  666;  Shreeves  v.  Cald- 
well, 135  Mich,  323;  Beld  v.  Darst, 
146  Mich.  143;  People  v.  Grant,  117 
Mich.    613;    Forster   v.   Brown,    119 


Mich.  86;  Smith  v.  McDonald,  139 
Mich.  225;  Lee  v.  Livingston,  143 
Mich.  203;  Alpena  City  Water 
Works  Co.  V.  City  of  Alpena,  130 
Mich.  518;  Broughton  v.  Jones,  120 
Mich.  462;  Wolf  v.  Holton,  110 
Mich.  166;  Stockman  v.  Mitchell, 
109  Mich.  348;  Boehm  v.  City  of 
Detroit,  141  Mich.  277;  Menominee 
v.  S.  K.  Martin  Lumber  Co.,  119 
Mich.  201;  Olin  v.  Henderson,  120 
.Mich.  149;  Obenauer  v.  Solomon, 
1 51  Mich.  570 ;  Lee  v.  United  States 
(iraphite  Co.,  161  Mich,  157;  Rich- 
ards V.  Church  Balance-Gear  Co.,  166 
Midi.  464;  Foster  v.  Watson,  153 
Mich.  400;  Page  v.  Boehmer,  154 
Mich.  693;  Merrinane  v.  Miller 
157  Mich.  279;  Bennett  v.  Maurice 
162  Mich.  254;  Ulmer  v.  Seelman 
1.59  Mich.  253;  Osborne  v.  Os 
borne,  156  Mich.  413;  Hayes  v,  Wa 
bash  R.  Co.,  163  Mich.  174;  Opso 
mere  v.  Opsomere,  167  Mich.  636 
O'Dell  v.  (!off,  153  Mich.  643;  See 
ley  V.  Swift  &  Co.,  151  Mich.  545 
Lewis  V.  Jacobs,  153  Mich.  664 
Clark  V.  Ulrich,  153  Mich.  695. 

75  Scendar  v.  Winona  Copper  Co., 
169  Mich.  665;  Nelson  v.  Stewart, 
174  Mich.  127;  Place  v.  Place,  139 
Mich.  509;  Ebel  v.  Piehl,  134  Mich. 
ti4 ;  Henderson  v.  Sherman,  47 
Mich.  267;  Butterfield  v.  Gilchrist, 
53  Mich.  22;  Foley  v.  Dwyer,  122 
Mi.'h.  587;  Burke  v.  Wilber,  42  Mich. 
.".27;  Jarvis  v.  Flint,  etc.,  R.  Co.,  128 
Mich.  61;  Loser  v,  Jorgenson,  137 
Mich.  220. 

76Safford  v.  Detroit  Board  of 
Health,  110  Mich.  81. 


§46 


Erkok,  Writ  of 


623 


the  court  below,  the  supreme  court  will  not  consider 
the  question  unless  the  ground  of  objection  was  stated 
to  the  court  below,  nor  upon  any  other  ground  than  that 
so  stated."  In  other  words,  error  cannot  be  brought 
into  a  case  retrospectively.'''^  However,  want  of  juris- 
diction of  the  subject-matter  cannot  be  waived  and  may 
be  first  urged  on  writ  of  error,'''*  and  the  alleged  dis- 
qualification of  the  trial  judge  is  reviewable  on  error, 
although  not  urged  before  the  decision  was  rendered.*" 
To  illustrate:  Questions  not  raised  on  a  motion  for 
a  ncAv  trial,  which  might  have  been  urged  at  that  time, 
cannot  be  first  urged  on  a  writ  of  error.®^  Failure  to 
file  reasons  for  overruling  a  motion  for  a  new  trial  can- 
not be  considered  on  error  where  no  request  was  made 


77  People  V.  Moore,  86  Mich.  134; 
Abbott  V.  Chaffee,  83  Mich.  256; 
Krolik  V.  Graham,  64  Mich.  226;  Lu- 
cas V.  Wattles,  49  Mich.  380;  Jen- 
nings V.  Prentice,  39  Mich.  421 ;  Ives 
V.  Leonard,  .50  Mich.  296;  Young  v. 
Stevens,  9  Mich.  500;  Wicks  v.  Boss, 
'67  Mich.  464;  Hollister  v.  Brown, 
19  Mich.  163;  Brown  v.  Weightman, 
62  Mich.  557 ;  Detroit,  etc.,  E.  Co.  v. 
Crane,  50  Mich.  182;  Mahiat  v. 
Codde,  106  Mich.  387;  Howry  v.  Ep- 
pinger,  34  Mich.  29;  Hogelscamp  v. 
Weeks,  37  Mich.  422;  Achey  v.  Hull, 
7  Mich.  423;  People  v.  Summers, 
115  Mich.  537;  Lungerhausen  v. 
Crittenden,  103  Mieh.  173;  Holman 
V.  Union  St.  R.  Co.,  114  Mich.  208; 
Benedict  v.  Michigan  B.  &  P.  Co., 

115  Mich.  527;  People  v.  Foglesong, 

116  Mich.  556;  Bettys  v.  Denver 
Tp.,  115  Mich.  228;  People  v.  Pope, 
108  Mieh.  361 ;  Baker  v.  City  of  De- 
troit, 166  Mich.  597;  Brown  v.  Spie- 
gel, 167  Mieh.  645;  Jordan  v.  Le 
Messurier,  155  Mich.  188;  Lockard 
v.  Van  Alstyne,  155  Mich.  507;  Hoek 
v,    Allendale    Tp.,    161    Mich.    571; 


Rock  Island  Plow  Co.  v.  Smith,  162 
Mich.  180;  Taylor  v.  City  of  Jack- 
son, 151  Mich.  639;  Sisson  v.  Lam- 
pert,  159  Mich.  509;  Storch  v.  Rose, 

152  Mich.  521;  Northrup  v.  City  of 
Pontiac,  159  Mich.  250;  Patterson 
v.  Gore,  177  Mich.  591;  Fidelity  & 
Deposit  Co.  V.  Maile,  177  Mieh.  231 ; 
Joehen  v.  Tibbells,  50  Mich.  33; 
Crane  v.  Waldron,  133  Mich.  73. 

78  Detroit,  etc.,  R.  Co.  v.  Crane,  50 
Mich.  182. 

79  Thompson  v.  Michigan  Mut. 
Ben.  Ass'n,  52  Mich.  522. 

80  Bliss  V.  Tyler,  149  Mich.  601. 

81  Northrup  v.  City  of  Pontiac, 
159  Mich.  250;  Storeh  v.  Rose,  152 
Mich.  521;  Casearclla  v.  National 
Grocer  Co.,  151  Mich.  15;  People  v. 
.Judge  of  Superior  Court  of  Detroit, 
41  Mieh.  31;  Rohde  v.  Biggs,  108 
Mich.  446. 

P^xcessiveness  of  verdict  cannot 
be  considered  on  error  where  not 
raised  in  the  lower  court  on  motion 
for   now    trial.      Weateott   v.   Wade, 

153  Mich.  340;  Dice  v.  Sherbernojni. 
152  Mich.  601. 


624  Error,  Writ  of  §46 

therefor.^'^  So  variance  between  the  pleadings  and  the 
proof  cannot  be  first  urged  on  writ  of  error*'  nor  can 
the  sufficiency  of  the  declaration.** 

Particular  defenses  not  raised  nor  urged  in  the  trial 
court  cannot  be  relied  on  in  the  supreme  court,*^  nor 
can  such  court  of  its  own  motion  dispose  of  the  case 
upon  an  existing  defense  not  raised  in  the  trial  court.*^ 
Thus  the  defense  of  the  statute  of  limitations  cannot 
first  be  urged  on  error,*'''  nor  the  statute  of  frauds,**  nor 
the  defense  that  the  contract  sued  on  was  in  restraint 
of  trade.**  Moreover,  a  defense  that  plaintiff  had  not 
shown  good  title  cannot  be  considered  where  it  was 
first  urged  on  a  motion  for  a  new  trial.*" 

Want  of  jurisdiction  of  the  person  cannot  be  first 
urged  in  the  supreme  court,*^  although  the  rule  appar- 
ently is  otherwise  in  case  of  want  of  jurisdiction  of  the 
subject-matter.*^     The  unconstitutionality  of  a  statute 

82  Groat  V.  Detroit  United  Ey.,  457;  Hollister  v.  Kinyon's  Estate, 
153  Mich.  165.  195  Mich.  261;    Bennett  v.  Denton, 

83  Reese  v.  Dyer,  199  Mich.  204;  194  Mich.  610;  Conger  v.  Hall,  158 
Scendar  v.  Winona  Copper  Co.,  169  Mich.  447. 

Mich.    665;    Habitz    v.    Wabash    R.  So  it  is  not   sufficient  to  merely 

Co.,  170  Mich.  71;  Nelson  V.  Stewart,  plead    limitations    and    make    it    a 

174  Mich.  127;   Hammond  v.  Porter,  ground  for  moving  for  a  new  trial, 

150   Mich.    328;    Hayes   v.    Wabash  where  not  urged  on  the  trial  or  oth- 

Ry.  Co.,  163  Mich.  174.  erwise  brought   to  the   attention  of 

84  Taylor  v.  Belton,  188  Mich.  the  trial  court.  Moden  v.  Superin- 
302;  Merrinane  v.  Miller,  157  Mich.  tendents  of  the  Poor,  183  Mich.  120. 
279.  88  Bennett    v.    Denton,    194   Mich. 

85  Wood  V.  Carey,  200  Mich.  217;  610;  Obenauer  v.  Solomon,  151  Mich. 
City    of    Kalamazoo    v.    Perrin,    194  570,  575. 

Mich.   484 ;    Boston   Piano  &   Music  89  Lee   v.   United   States  Graphite 

Co.    V.    Pontiac    Clothing    Co.,    199  Co.,  161  Mich.  157. 

Mich.    141 ;    Ithaca   Roller    Mills   v.  90  Colwell    v.    Alpena   Power    Co., 

Ann   Arbor   R.  Co.,  197   Mich.  440;  178  Mich.  183,  255. 

Richards    v.     Church    Balance-Gear  91  Springer    v.    Fuller,    196   Mich. 

Co.,  166  Mich.  464.  628;    Taylor   v.   Davarn,    191    Mich. 

86  Boston  Piano  &  Music  Co.  v.  243  (objection  to  sufficiency  of  serv- 
Pontiac  Clothing  Co.,  199  Mich.  141.  ice  of  summons). 

87  Swan    V.    Gregory,    195    Mich.  92  See  ante,  this  section. 


§  46  Error,  Writ  of  625 

cannot  first  be  urged  in  the  supreme  court,®'  nor  can 
objections  to  the  granting  of  a  motion  for  a  continu- 
ance.®* Objections  to  form  of  action,  as  where  it  is 
urged  the  proper  form  is  an  action  on  the  case  and  not 
assumpsit,  are  not  reviewable  on  error  where  not  raised 
in  the  trial  court  except  on  a  motion  for  a  new  trial.®^ 
So  objections  to  the  introduction  of  evidence  cannot 
be  first  urged  on  a  writ  of  error,®^  nor  can  additional 
or  other  objections  thereto  not  urged  in  the  trial  court.®^ 
Likewise  objections  to  cross-examination  of  witnesses 
must  be  urged  in  the  trial  court  or  are  deemed  waived.®* 
If  the  record  does  not  show  an  offer  of  proof,  its  rejec- 
tion cannot  be  considered.®® 

On  excepting  to  an  answer  by  a  witness,  a  motion  to 
strike  it  out  is  necessary  in  order  to  assign  error  there- 
on.^ So  where  a  question  is  answered  after  an  objec- 
tion to  it  is  sustained,  error  cannot  be  predicted  there- 
on in  the  absence  of  a  motion  to  strike  the  answer  from 
the  record.'' 

Improper  remarks  of  counsel  in  argument  before  the 
jury  are  not  reviewable  unless  an  objection  is  made 
thereto  and  a  ruling  of  the  court  obtained  thereon,'  and 

93  Maurer  v.  Greening  Nursery  99  Eberts  v.  Mt.  Clemens  Sugar 
Co.,  199  Mich.  522.  Co.,  182  Mich.  449. 

94  Goldberg  v.  Peerless  Pattern  1  Bowen  v.  Chandler,  172  Mich. 
Co.,  197  Mich.  362.  678. 

96  Fuhrman    v.    Sun    Ins.    Office,  2  Sullivan     v.     Truszkowski,     185 

180  Mich.  439,  448.  Mich.  17. 

96  Baxter  v.  Woodward,  191  Mich.  8  Murphy  v.  Manistee  E.  Co.,  194 
379;  Slattery  v.  Tillman,  197  Mich.  Mich.  595;  Greenleaf  v.  Lambert, 
349;  Simmons  v.  National  Live  192  Mich.  411;  Mortensen  v.  Brad- 
Stock  Ins.  Co.,  187  Mich.  551;  Duf-  shaw,  188  Mich.  436;  Kasprzak  v. 
finy  V.  Detroit  &  M.  E.  Co.,  186  Chapman,  197  Mich.  552;  Eberts 
Mieh.  40  (objection  insufficient  v.  Mt.  Clemens  Sugar  Co.,  182 
where  not  made  until  after  dismissal  Mich.  449;  Spencer  v.  Johnson,  185 
of  the  witness).  Mich.    85;    Patterson    v.    Gore,    177 

97  Bobbins  v.  Magoon  &  Kimball  Mich.  591 ;  Wiers  v.  Shaw- Walker 
Co.,  193  Mich.  200,  and  see  Trial.  Co.,    171   Mich.   324;    Meade  v.   Dc- 

98Soule  V.  Henry,  197  Mich.  473.       troit,  J.  &  C.  Ry.,   165  Mieh.  489; 
1  Abbott— 40 


626 


Error,  Writ  of 


§46 


it  is  not  sufficient  to  merely  take  an  exception  where  no 
ruling  is  asked  for  or  made.*  So  alleged  prejudicial 
remarks  of  the  court  during  the  trial  cannot  be  re- 
viewed Avhere  the  attention  of  the  trial  court  was  not 
called  to  them.^  P^ailure  of  the  court  to  instruct  the 
jury  on  particular  matters  is  not  reviewable  in  the  ab- 
sence of  a  request  for  instructions  relating  thereto.® 

The  question  whether  a  verdict  is  excessive  or  inade- 
quate will  not  be  reviewed  unless  the  point  is  presented 
on  a  motion  for  a  new  trial/  and  the  same  is  true  as 
to  the  question  whether  a  verdict  is  against  the  weight 
of  the  evidence.' 


§47. 


Rulings  not  excepted  to. 


It  was  fonnerly  the  rule  that  no  assignment  of  eiTor 
would  be  considered  unless  it  was  supported  by  an  ex- 
ception, shown  by  the  record  to  have  been  duly  taken,® 


rormiller  v.  Detroit  United  Ry.,  164 
Mich.  653,  662. 

4  Appleby  v.  Sperling,  194  Mich. 
681 ;  Township  of  Deep  River  v. 
Van  Antwerp,  174  Mich.  19;  Habitz 
V.   Wabash   R.    Co.,   170   Mich.    71; 

•  Crane  v.  Ross,  168  Mich.  623 ;  De- 
troit Nat.  Bank  v.  Union  Trust  Co., 
158  Mich.  557,  562.  To  same  effect, 
Good  Roads  Const.  Co.  v.  Port  Hu- 
ron, etc.,  R.  Co.,  173  Mich.  1. 

5  Neal  V.  Neal,  181  Mich.  114. 

6  Minds  V.  Keyes,  189  Mich.  629; 
Stuart  V,  Holt,  166  Mich.  549;  Pru- 
ner  v.  Detroit  United  Ry.,  173  Mich. 
146;  Amanta  v.  Michigan  Cent.  R. 
Co.,  177  Mich.  280;  Rivers  v.  Bay 
City,  etc.,  Co.,  164  Mich.  696,  707; 
Spray  v.  Ayotte,  161  Mich.  593. 

TShowen  v.  .T.  L.  Owens  Co.,  182 
Mich.  264. 

•  Myers  v.  Muskegon  Imp.  Co.,  19.'! 
Mich.  697;  In  re  Warring 's  Estate, 
196  Mich.  720. 


9  People   V.  MiUs,  94  Mich.   630 
Haines    v.    Saviers,    93    Mich.    440 
Hinthman  v.  Weeks,  85  Mich.  535 
Thorn    v.    Maurer,    85    Mich.    569 
Lindner    v.    Hine,    84    Mich.    511 
Henry  C.  Hart  Mfg.  Co.  v.  Mann's 
Boudoir  Car  Co.,  65  Mich.  564;  Bed- 
ford    V.     Penney,     65     Mich.     667; 
Browne    v.    Moore,    32    Mich.    254; 
Lee  V.  Hardgrave,  3  Mich.  77;  Bath 
V.    Caton,    37    Mich.    199;    Piatt    v. 
Brand,  26  Mieh.  173 ;  Gambs  v.  Suth- 
erland's     Estate,     101     Mich.     355; 
Banks    v.    Cramer,    109    Mich.    168; 
Runnclls   v.    Village    of   Pentwater, 
100  Mich.  512;   Bokenfohr  v.  Bush, 
117  Mich.  444;  Fitzpatrick  v.  Hoff- 
man, 104  Mich.  228;  Childs  v.  Nor- 
della,  116  Mich.  511;  People  v.  Sum- 
mers,    115     Mieh.     537;     Morse     v. 
Blanchard,  117  Mich.  37;  Holman  v. 
Union  St.  Ry.  Co.,  114  Mich.  208; 
Longyear  v.  Gregory,  110  Mich.  277; 
Noble  v.  St.  .Joseph,  etc.,  R.  Co.,  98 


§47  Error,  Writ  of  627 

except  where  the  error  was  apparent  on  the  face  of  the 
record  witliout  a  bill  of  exceptions,  as  that  the  written 
findings  by  the  court  of  the  facts  and  the  conclusions 
of  law  do  not  support  the  judgment,*"  and  except  errors 
in  the  charge  of  the  court,  which,  by  statute,**  were 
permitted  to  be  assigned  without  exception  to  the 
charge,  but  now  it  is  provided  not  only  that  it  is  un- 
necessary to  except  to  the  charge  of  the  court  or  to  the 
refusal  to  charge  as  requested,  but  that  it  is  not  neces- 
sary ''in  the  trial"  to  except  to  any  ruling  or  action 
of  the  court,  if  an  objection  thereto  was  duly  made,  but 
an  exception  will  be  deemed  to  follow  as  a  matter  of 
course,  so  that  now  any  party  considering  himself  ag- 
grieved by  any  such  ruling,  action,  charge  or  refusal 
to  charge  may  assign  error  the  same  as  if  exception  had 
been  made  according  to  the  former  practice.*^  But  if 
no  exceptions  are  filed  to  findings  of  fact  of  the  trial 
court,  the  weight  of  the  evidence  cannot  be  reviewed 
but  the  supreme  court  is  confined  to  determining 
whether  there  is  any  evidence  to  sustain  the  findings.** 
So  an  order  denying  a  motion  for  a  new  trial  is  not  re- 
viewable where  no  exception  is  taken  to  the  denial  of 

Mich.  249;   Miller  v.  Lachman,  117  Mich,  123;  Feller  v.  Green,  26  Mich, 

Mich,    68;    Finley    v.    Widner,    116  70;   Wilcox  v.  Eagle  Tp.,  81  Mich. 

Mich.   679;    Knop  v.   National  Fire  271;     Stafford     v.     Crawford,     118 

Ins.  Co.,  101  Mich.  .159;   People  v.  Mich.   285.     See  also  Henderson  v. 

Milliard,  119  Mich.  24;    In  re  Gal-  City  of  Detroit,  61  Mich,  .178;  Tur- 

lagher's     Estate,     120     Mich.     :]65;  nor  v.  Burr,  141  Mich.  106. 

Relby  v.  Detroit  R.  Co.,   122  Mich,  11  How,    Stat.    (2nd    ed.)    12960; 

;m.  Comp.  Laws  1897,  §  10247;  Jud.  Act, 

10  Robards  V.  Waterman,  96  Mich.  eh.     18,    §60;     Comp.    Laws    1915, 

233;  Cook  v.  Burnett,  83  Mich.  251;  iS§  12632,  14576. 

Green    v.    Bennett,    23    Mich.    464;  18  Jud.   Act,   ch.    18,    §60;   Comp. 

Hubbard  V.  Garner,  115  Mich.  406;  Laws     1915,     §12632;     Rohmer     v, 

Crippen  v.  Jacobson,  56  Mich.  386;  Labo,  191  Mich.  55. 

Leitelt  v.  Parker,  48  Mich.  297 ;  Mor-  13  Reese  v.  Dyer,   199  Mich.   204, 

gan  V.  Botsford,  82  Mich.  153;  Sim-  and  see  Verdict  and  Findings. 
mons   Hardware   Co.   v.    Baker,   140 


628  Error,  Writ  of  §47 

the  motion,^*  and  the  same  is  true  of  an  order  denying 
a  motion  for  a  continuance." 

This  matter  as  to  the  necessity  for  exceptions  is  fully 
considered  in  another  article.^^ 

§  48.  Review  as  limited  by  the  record. 

It  is  elementary  that  questions  not  raised  by  the  rec- 
ord cannot  be  reviewed.^'  For  this  reason,  questions 
relating  to  taxation  of  costs  are  not  reviewable.^®  So 
error  in  a  proceeding  by  a  sheriff  after  judgment  can- 
not be  taken  advantage  of  on  a  writ  of  error  to  the 
judgment."  So  proceedings  before  the  circuit  court  to 
vacate  a  judgment  of  a  justice  of  the  peace  as  to  the 
surety  upon  his  petition  and  accompanying  affidavits  can- 
not be  considered  on  a  writ  of  error  bringing  up  the 
judgment  record  in  the  suit  appealed  from  the  justice 
court,  where  judgment  was  rendered  at  circuit  court 
against  the  surety  in  the  appeal.^" 

The  evidence  will  be  entirely  disregarded  unless  con- 
tained in  a  bill  of  exceptions  or  case  made,  and  it  is  not 

14  Vezina  v.   Shermer,    198   Mich.  tion  of  costs,  cannot  be  considered. 

757;    Goldberg   v.   Peerless   Pattern  Moore  v.  Daiber,  92  Mich.  402. 

Co.,  197  Mich.  362.  19  Hitchcock    v.    Hahn,    60    Mich. 

16  Goldberg    v.    Peerless    Pattern  459. 

Co.,  197  Mich.  362.  The  failure  of  the  plaintiff's  at- 

16  See  Exceptions.  torney  to  make  the  indorsement  re- 

17  See    §  42,  ante.  quired  by  statute  upon  an  execution 
Only  decisions  arising  on  the  rec-  issued  upon   a  judgment   in  an  at- 

ord  or  which  become  a  part  of  the  tachmcnt  suit   and   the   levy   of   the 

record  by  a  bill  of  exceptions  are  sheriff  thereunder  will  not  be  consid- 

reviewable.     Pearsons  v.   Eaton,  18  ered  by  the  supreme  court  on  a  writ 

Mich.  79.  of  error;   and,  in  general,  any  pro- 

18  Lorman  v.  Phoenix  Ins.  Co.,  ceeding  in  a  case  after  judgment  is 
33  Mich.  65.  On  error  to  review  a  perfected  therein  will  not  be  consid- 
judgment  questions  relating  to  re-  ered  by  the  supreme  court  when  a 
taxation  of  costs  are  not  reviewable.  reversal  of  the  judgment  is  sought 
Cox  V.  Klein,  149  Mich.  162.  On  a  upon  writ  of  error.  Hitchcock  v. 
writ   of   error   to  review   the   judg-  Hahn,  60  Mich.  459. 

ment,    the    affirmance    by    the    trial  20Buehler  v.  De  Lemos,  84  Mich, 

court  on  appeal  of  the  clerk 's  taxa-      554. 


§48  Error,  Writ  of  629 

sufficient  that  it  accompany  the  transcript  of  the  record 
returned  with  the  writ  of  error.^^  When  all  the  ques- 
tions are  such  as  can  only  be  raised  by  a  bill  of  ex- 
ceptions, and  there  is  no  bill  of  exceptions,  the  court 
will  affirm  the  judgment.^^  If  all  the  evidence  in  rela- 
tion to  an  alleged  error  is  not  in  the  record,  it  will  not 
be  considered.^'  Where  the  record  does  not  purport  to 
contain  all  of  the  evidence,  findings  of  fact  of  the  trial 
court  cannot  be  reviewed.^*  And  where  neither  the 
judgment  nor  the  order  denying  a  new  trial  is  printed 
in  the  record,  nor  the  reasons  given  by  the  court  for 
denying  the  motion,  the  order  cannot  be  reviewed.''^ 
On  a  writ  of  error  to  review  a  judgment  affirmed  by  the 
circuit  court  on  certiorari,  only  such  grounds  can  be 
considered  as  are  alleged  in  the  affidavit  for  certiorari.^^ 
On  the  other  hand,  matter  improperly  included  in  the 
record  will  not  be  considered.^'  So  statements  improper- 
ly included  in  the  bill  of  exceptions  will  not  be  consid- 
ered.^' 

For  the  reason  also  that  it  constitutes  no  part  of  the 
record,  proceedings  on  a  motion  to  set  aside  a  capias 
ad  respondendum,^®  or  to  dismiss  an  appeal  from  a  jus- 

21  Peabody  v.  McAvoy,  23  Mich.  served  on  counsel  for  the  opposing 
526.  party,  and  for  that  reason  were  not 

22  Stendell  v.  Noak,  19  Mich.  391.  considered  by  the  trial  court,   they 

23  Connor  v.  Levinson,  115  Mich.  cannot  be  considered  on  appeal,  al- 
297.  though   incorporated   in   the   record. 

Presumption  that  assumed  record  Eeason  v.  Detroit,  O.  H.  &  M.  By. 

contains  all  the  testimony,  see  New-  Co.,  150  Mich.  50. 

ell  V.  Reid,  189  Mich.  174.  But  affidavits  on  a  motion  for  a 

24  Lasley  v.  Preston,  157  Mich.  66.  new    trial,    considered    by    the    trial 

25  In  re  Bender 's  Estate,  159  court)  were  treated  as  properly  a 
Mich.  108.  part   of  the   record   in   Hampton   v. 

26Woodmere    Cemetery    v.    Roulo,  Van  Nest's  Estate,  196  Mich.  404, 

104  Mich.  595;  Wilson  v.  McCrillies,  although  not  made  a  part  of  the  bill 

50  Mich.  347;  Grand  Trunk  Ry.  Co.  of   exceptions,    where   extracts   from 

v.    Eusa,    47    Mich.    500;    People   v.  such  affidavits  were  printed   in   tlio 

Hobson,  48  Mich.  27.  record. 

27  Where    affidavits,    filed   with    a  28  Watson  v.  Kane,  31  Mich.  61. 

motion    for    a   new    trial,    were    not  29  Miller  v.  Rosier.  31   Mich.  475. 


630  Error,  Writ  of  §48 

tice's  court,^*'  or  to  vacate  a  Jiuliiiiient,^^  or  to  set  aside 
the  service  of  a  declaration,^^  will  not  be  considered  by 
the  supreme  court  on  writ  of  error. 

Improper  statements  of  counsel  made  in  the  course  of 
argument  will  not  be  considered  where  they  are  not  con- 
tained in  the  record. ^^ 

Failure  to  liave  the  record  properly  indexed  generally 
precludes  the  review  of  matters  not  indexed,  including 
exceptions.^* 

§  49.  Refusal  of  new  trial. 

For  the  reason  that  the  refusal  of  a  new  trial  is  dis- 
cretionary and  the  further  one  that  it  does  not  consti- 
tute a  part  of  the  record,  it  was  formerly  held  that  the 
erroneous  action  of  the  trial  court  in  refusing  to  grant 
a  new  trial  could  not  be  reviewed  upon  error  by  the 
supreme  court  ;^^  })iit  now  it  is  provided  by  statute  that, 
in  all  cases  taken  to  the  supreme  court  on  writ  of  error, 
where  a  motion  for  a  new  trial  has  been  refused  by  the 
trial  judge,  the  party  appealing  may  incorporate  in  the 
bill  of  exceptions  a  record  of  the  proceedings  had  on 
the  motion,  including  the  reasons  given  by  the  trial 
judge  in  refusing  to  grant  a  new  trial,  and  exceptions 
may  be  taken  and  error  assigned  on  the  decision  of  the 
circuit  judge  in  refusing  the  motion,  and  the  same  will 
be  reviewed  by  the  supreme  court. ^^    AVhen  the  motion 

30  Conrad    v.    Freeland,    18   Mifh.  troit  Tug  &  Wrecking  Co.  v.  Wayne 

255.  Circuit  Judge,  75  Mich.  .^60;   Bras- 

81  Buehler  v.  Lemos,  84  Mich.  554.  sel  v.  Minneapolis,  etc.,  R.  Co.,  101 

32Millerd  v.  Reeves,  1  Mich.  107.  Mifli.    5;    Nelson    v.    Lumberman's 

38Norris    v.    Detroit   United    Ry.,  Min.   Co.,   65   Mich.   288;    Dibble  v. 

19.T  Mich.  578.  Rogers,    2    Mich.    404;    Greeley    v. 

84  See  Supreme  Court,  §14.  Stilson,  27   Mich.   153;   Mahoney  v. 

SSMonnier    v.' Mezner,    17    Mich.  People,  43   Mich.  39;    Gray  v.  Bar- 

271;    People    v.    Pearsoll,    50    Mich.  ton,  62   Mich.   186;   Johr  v.   People, 

233;  Moore  v.  Daiber,  92  Mich.  402;  26  Mich.  426;  People  v.  Francis,  52 

Graham    v.    Myers,    67    Mich.    277;  Mich.  576. 

Hake    v.    Buell,    50    Mich.    89;    De-  36  Jud.   Act,   ch.    18,    §63;    Comp. 


§49 


Error,  Writ  of 


631 


for  a  now  trial  is  based  upon  the  ground  that  the  ver- 
dict is  against  the  weight  of  the  evidence,  it  is  the  duty 
of  the  court  to  examine  the  evidence  and  determine  for 
itself  whether  the  verdict  is  so  plainly  against  justice 
as  to  call  for  a  new  trial."  But  it  is  only  where  the  ver- 
dict is  clearly  against  the  great  weight  of  the  evidence 
that  the  supreme  court  will  reverse  the  ruling  of  the 
trial  judge  in  refusing  a  new  trial.^® 

There  has  been  more  or  less  conflict  and  misunder- 


Laws  1915,  §  12635;  Gemberling  v. 
Lazarus,  100  Mich.  324;  Brassel  v. 
Minneapolis,  etc.,  E.  Co.,  101  Mich. 
5;  Rnop  v.  National  First  Inst.  Co., 
101  Mich.  359;  McKea  v.  Garth 
Lumber  Co.,  102  Mich.  488;  Finle.v 
V.  Widner,  116  Mich.  697;  Hill  v. 
Hill,  114  Mich.  599;  In  re  Gal- 
lagher's Estate,  121  Mich.  365; 
Shields  v.  Moody,  120  Mich.  472. 

Abuse  of  discretion  must  be 
shown.  Nosa  v.  Munising,  etc.,  E. 
Co.,  196  Mich.  104. 

37  In  re  Melntyre's  Estate,  160 
Mieh.  117;  Hintz  v.  Michigan  Cent. 
E.  Co.,  132  Mich.  305;  Baldwin  v. 
Grand  Trunk  B.  Co.,  128  Mich.  417 ; 
Whipple  vr  Michigan  Cent.  E.  Co., 
130  Mich.  460;  Woods  v.  Palmer, 
151  Mieh.  30;  Bernard  v.  Grand 
Eapids  Paper  Box  Co.,  170  Mich. 
238;  Bosek  v.  Detroit  United  Ey., 
175  Mich.  8;  Cole  v.  Detroit  Elec 
Ey,,  132  Mieh.  122;  Montmorency 
County  V.  Putnam,  127  Mich.  36; 
Wheeler  v.  Jennison,  120  Mieh.  422; 
Sauer  v.  McClintie-Marshall  Con- 
struction Co.,  179  Mich.  618;  Sea- 
man V.  Eindge,  etc.,  Co.,  195  Mich. 
417. 

SSEced  V.  McCready,  170  Mich. 
532;  Gardiner  v.  Courtright,  165 
Mich.  54;  Stevens  v.  Michigan  Soap 
Works,    134    Mich.    350;    Krouse    v. 


Detroit  United  Ey.,  170  Mich.  438 
Tyler  v.  Wright,  171  Mich.  579 
Vyn  V.  Keppel,  108  Mich.  244 
Blanchard  v.  Moors,  85  Mich.  380 
McDonnell  v.  Central  Drug  Co., 
170  Mich.  291;  Fike  v.  Pere  Mar- 
quette B.  Co.,  174  Mieh.  167; 
People  V.  Sartori,  168  Mich.  308; 
Muneey  v.  Sun  Ins.  Office,  109 
Mich.  542 ;  In  re  Parr 's  Estate,  161 
Mich.  244;  Mcintosh  v.  Mcintosh, 
79  Mich.  198;  Hoffman  v.  Loud,  111 
Mich.  156;  Malinowski  v.  Detroit 
United  Ey.,  154  Mich.  104;  In  re 
Hoyle's  Estate,  162  Mich.  275;  Du- 
puis  V.  Saginaw  Valley  Traction  Co., 
146  Mich.  151;  Druck  v.  Antrim 
Lime  Co.,  177  Mich.  364;  Brennan 
V.  O'Brien,  121  Mich.  491;  Darling 
V.  Grand  Eapids,  etc.,  E.  Co.,  184 
Mich.  607;  McGary  v.  Buick  Motor 
Co.,  182  Mich.  345;  Moss  v.  Detroit, 
etc.,  E.  Co.,  188  Mieh.  1;  Morrison 
V.  City  of  Ironwood,  189  Mich.  117; 
Silverstone  v.  London  Assurance  Co., 
187  Mieh.  333;  B.  Marx  &  Son  v. 
King,  177  Mich.  662 ;  Mink  v.  Grand 
Eapids,  etc.,  E.  Co.,  194  Mich.  324; 
Simmer  v.  Cutter's  Estate,  194  Mich. 
34;  McKay  v.  Detroit  United  Ey., 
195  Mich.  88;  Jacobs  v.  Queen  Ins. 
Co.,  195  Mich.  18;  Chapman  v.  Anu 
Arbor  E.  Co.,  196  Mich.  671. 


632  Error,  Writ  of  §  49 

standing  as  to  the  effect  of  the  failure  of  the  trial  judge, 
where  he  denies  the  motion,  to  state  his  reasons  for  de- 
nying a  new  trial.  In  1917,  however,  the  supreme  court 
held  that  where  the  moving  party  has  filed  a  request 
for  a  written  finding,  and  such  written  finding  has  not 
been  filed  by  the  court,  error  may  be  assigned  on  the 
refusal  to  grant  the  new  trial  notwithstanding  no  rea- 
sons in  writing  for  denying  the  motion  were  filed.'^  On 
the  other  hand,  in  1916,  the  supreme  court  said:  ''There 
was  a  motion  for  a  new  trial  which  was  denied,  but  no 
reasons  were  filed  in  w^riting  by  the  circuit  judge  in 
denying  the  motion,  and  there  is  nothing  in  the  record 
to  indicate  that  he  was  requested  to  give  his  reasons. 
We  cannot  therefore  review  his  action  upon  the  mo- 
tion for  a  new  trial. "  *®  It  seems  to  follow  that  the 
right  of  review  depends  upon  the  filing  of  a  request  to 
state  such  reasons.*^  At  any  event,  failure  of  the  trial 
judge  to  file  a  fuller  statement  of  the  reasons  for  over- 
ruling a  motion  for  a  new  trial  is  not  reversible  error.*^ 

§  50.  Where  place  where  error  occurs  in  record  not 

pointed  out. 

Assignments  of  error  relating  to  the  admission  of  evi- 
dence will  not  be  considered  where  the  part  of  the  rec- 
ord containing  the  evidence  is  not  referred  to.*^  So 
where  there  is  no  reference  in  the  index,  or  the  assign- 
ments of  error,  to  the  page  of  the  record  where  the  ex- 
ceptions appear,  the  assignments  will  not  be  consid- 
ered.**    And  exceptions  to  the  admission  of  the  testi- 

89  Clark    v.    Onaway- Alpena    Tel.  42  Clark  v.   Detroit  &  M.  R.  Co., 

Co.,  196  Mich.  168.     See  also  New  204  Mich.  121. 

Trial.  43  Zimmerman  Mfg.  Co.  v.  Dolph, 

40  Gordon  v.  Drake,  193  Mich.  64,  104  Mich.  281. 

69,  citing  GriflBn  v.  McKnight,  116  44  Niagara  Sprayer   Co.   v.  Wood, 

Mich.  468  and  McRae  v.  Garth  Lum-  186  Mich.  303;  Duff  v.  Johnson,  160 

ber  Co.,  102  Mich.  488.  Mich.    386;     Boeder    v.    Moore,    95 

41  See  Bennett  v.  Denton,  194  Mich.  594.  See  also  Supreme 
Mich.  610,  613.  Court,  §  14. 


§  51  Error,  Writ  of  633 

mony  not  indexed  as  required  by  the  rule  of  court,  nor 
found  in  the  record,  are  not  reviewable,  although  made 
grounds  of  a  motion  for  a  new  trial.*^  Sometimes,  how- 
ever, the  supreme  court,  as  a  matter  of  grace,  assumes 
the  labor  of  looking  up  the  exceptions  although  they 
are  not  indexed.*® 

§  51.  Questions  not  necessary  to  be  decided. 

Matters  not  necessary  to  be  decided  on  error  will  not 
be  reviewed.*'  It  follows  that  the  constitutionality  of 
statutes  will  not  be  passed  on,  where  the  case  can  be 
determined  without  doing  so,*^  and  questions  not  neces- 
sary to  a  final  determination  of  the  suit  will  not  be  con- 
sidered.** Nor  will  it  be  considered  whether  the  rem- 
edy sought  is  the  best,  so  long  as  it  is  permissible.^" 
But  where  questions  are  presented  which  will  again 
arise  upon  a  new  trial,  and  are  fully  argued  at  the  hear- 
ing, although  their  decision  is  not  necessary  to  the  de- 
termination of  the  cause  upon  the  writ  of  error,  the 
court  will  often  pass  upon  them  in  order  to  save  the 
necessity  of  bringing  up  the  same  questions  again  in 
the  same  cause. 

45  Conger  v.  Hall,  158  Mich.  447.  And  where  one  party  concedes 
See  also  Showen  v.  J.  L.  Owens  Co.,  that  the  judgment  of  the  court  must 
182  Mich.  264,  be  in  favor  of  his  adversary  to  the 

46  0anelli  v.  Littlejohn,  172  Mich.  full  extent  of  what  he  could  claim 
91 ;  Niagara  Sprayer  Co.  v.  Wood,  on  argument,  the  court  will  not  hear 
186  Mich.  303;  Mills  v.  Warner,  167  an  argument  for  the  purpose  of 
Mich.  619.  See  also  Supreme  expressing  their  opinion  on  points 
Court,  §  14.  thus    rendered    unnecessary    to    the 

47  Fessenden  v.  Hill,  6  Mich.  242 ;  decision  of  the  cause.  Sanger  v. 
Thompson  v.  Howard,  31  Mich.  309.  True.sdail,  7  Mich.  9. 

When  an  objection  is  taken  which  48  See   §  52,  post, 

goes  to  the  jurisdiction  of  the  court  49  Phillips  v.  Village  of  Kalama- 

below,  and  is  fatal  to  the  judgment      zoo,  53  Mich.  33. 
brought  up  for  review,  the  court  will  60  Rceg  v.  Burnham,  55  Mich.  39. 

not  pass  upon  the  other  questions 
raised  by  the  record.  Fessenden  v. 
Hill,  6  Mich.  242. 


634  Error,  Writ  of  §52 

§  52.  Constitutional  questions. 

The  constitutionality  of  a  statute  will  not  be  reviewed 
where  other  decisive  questions  are  raised  by  the  record 
which  dispose  of  the  case." 

§  53.  Review  on  second  or  further  writ. 

On  a  second  or  further  appeal,  the  questions  of  law 
settled  by  the  supreme  court  on  a  prior  writ  of  error 
in  the  same  case,  will  not  be  reviewed.^^  And  where 
the  testimony  is  substantially  the  same  as  on  the  former 
appeal,  the  case  must  be  ruled  by  the  prior  decision.^' 
So  a  prior  opinion,  althoui>li  not  unanimous,  settles  the 
law  of  the  case,^*  as  does  a  decision  by  an  equally  di- 
vided court." 

§  54.  Presumptions  in  support  of  judgment. 

The  court  will  look  at  the  whole  record  and  give  it 
a  reasonable  construction  and  will  follow  the  principles 
often  decided  and  enforced  by  the  court,  that  it  is  the 
duty  of  the  appellant  to  show  error  affirmatively  and 
conclusively,  and  that  every  presumption  is  in  favor 
of  the  validity  and  regularity  of  the  action  of  the  court 
below  and  will  be  applied  in  support  of  the  judginent.^^ 

51  Ncgaunee  Nat.  Bank  v.  LeBeau,  Union  Nat.  Bank  v.  Eich,  116  Mich. 

195    Mich.    502;     North    Michigan  414;     Anderson     Carriage     Co.     v. 

Water  Co.  v.  City  of  Escanaba,  199  Pungs,    15.3    Mich.    580;    Gamble   v. 

Mich.    286;    Port   Huron   Engine   &  Gates,  97  Mich.  465. 

Thresher   Co.   v.    Township   of   Port  53  Rouse  v.  Blair,  198  Mich.  176; 

Huron,    191    Mich.    590;    Powell    v.  Foley  v.   Detroit   &   M.   R.   Co.,   193 

Eldred,   .19   Mich.   552;    Chandler   v.  Mich.    2:J.3 ;     Myers    v.    Erwin,    180 

Nash,  5  Mich.  409.  Mich.  469;   OdoU  v.  Goflf,  153  Mich. 

58  State     Nat.     Bank     of     Albu-  643;   Winkleman  v.  City  of  Adrian, 

querque  v.  Wernicke,  202  Mich.  8;  151  Mich.  519. 

Jolman    v.    Alberts,    192    Mich.    25;  54  State     Nat.     Bank     of     Albu- 

Rouse  V.  Blair,  198  Mich.  176;  Gour-  querque  v.  Wernicke,  202  Mich.  8. 

lay  V.  Insurance  Co.,  of  North  Amer-  56  Gourlay    v.    Insurance    Co.    of 

ica,  189  Mich.  384;   Le  Roy  v.  Col-  North  America,  189  Mich.  384. 

lins,  165  Mich.  380;  Woods  V.  White  56  Turnbull      v.      Richardson,     69 

Star   Line,   165   Mich.    73;    Breiten-  Mifh.  400. 
wiseher   v.    Clough,   116   Mich.    340; 


§54 


Error,  Writ  of 


635 


Error  cannot  be  presumed,  but  must  be  affinnatively 
shown  by  the  record,*'  and  the  burden  of  showing  it  is 
upon  tlie  appellant.*'  Where  the  record  alone  is  before 
the  court  of  review  without  any  bill  of  exceptions,  no 
error  can  be  presumed,  where  the  record  itself  does  not 
show  error.*'  Where  tlie  record  does  not  purport  to 
contain  all  or  substantially  all  of  the  testimony,  the 
supreme  court  will  presume  that  the  evidence  intro- 
duced was  sufficient  to  sustain  the  judgment,^®  and  that 
there  was  evidence  justifying  the  instructions  to  the 
jury,^^  and  that  there  was  sufficient  evidence  to  over- 
come objections  complained  of.®^  In  reviewing  a  motion 
for  a  directed  verdict,  the  court  considers  the  testimony 


57  Nixon  V.  Hood,  201  Mich.  133; 
Comstock  V.  Hollon,  2  Mich.  355; 
Maynard  v.  Penninian,  10  Mich.  153 ; 
Kermott  v.  Ayer,  11  Mich.  181; 
Taff  V.  Hosmer,  14  Mich.  309;  Jen- 
nison  v.  Haire,  29  Mich.  207;  Cook 
V.  Hopper,  23  Mich.  511;  Peabody 
V.  McAvoy,  23  Mich.  526;  Gilbert 
V.  American  Ins.  Co.,  30  Mich.  400; 
Sirrine  v.  Briggs,  31  Mich.  443; 
American  Ins.  Co.  v.  Woodruff,  34 
Mich,  7;  Curley  v.  Wynian,  34 
Mich.  353;  Continental  Imp.  Co.  v. 
Ives,  30  Mich.  448;  Zimmer  v.  Davis, 
35  Mich.  39;  State  Ins.  Co.  v.  Reyn- 
olds, 35  Mich.  304;  Young  v.  Tay- 
lor, 36  Mich.  25;  Wethcrbee  v.  Kus- 
torer,  41  Mich.  359;  Brong  v. 
Brown,  42  Mich.  119;  Howard  v. 
Patrick,  43  Mich.  121;  Hurd  v. 
Newton,  36  Mich.  35;  Greenlee  v. 
Lowing,  35  Mich.  63;  Brown  v. 
Haak,  48  Mich.  229;  Kline  v.  Kline, 
49  Mich.  419;  Huff  v.  Hall,  56  Mich. 
456;  Manning  v.  Bresnahan,  6;> 
Mich.  584;  Bostwick  v.  Losey,  .67 
Mich,  554;  Tralters  v.  Tofift,  57 
Mich.  390;  Malachiski  v.  Stell- 
wagon,     85      Mich.     41;      Bond     v. 


McMahon,  94  Mich.  557;  Sloman  v. 
Mercantile  Credit  Guarantee  Co., 
112  Mich.  258;  Old  Second  Nat. 
Bank  v.  Williams,  112  Mich.  564; 
Hoffman  v.  Pack,  Woods  &  Co.,  114 
Mich.  1 ;  American  Ins.  Co.  v.  Wood- 
ruff, 34  Mich.  6;  Hamilton  v.  Lang- 
ley,  52  Mich.  549, 

58  Rodman  v.  Clark,  81  Mich.  466; 
Sullivan  v.  Deiter,  86  Mich.  404; 
Maynard  v.  Penniman,  10  Mich. 
153;  Jolmston  v.  Scott,  11  Mich. 
232;  Walters  v.  TeflPt,  57  Mich. 
390 ;  Brong  v.  Brown,  42  Mich.  119 ; 
Wetherbee  v.  Kusterer,  41  Mich. 
359;  Gilbert  v.  American  Ins.  Co., 
:50  Mich.  400. 

59  Walters  v.  Tefft,  57  Mich.  390. 

60  Conger  v.  Flint  &  P.  M.  R.  Co., 
86  Mich.  76;  Cappon  &  Bcrtsch 
Leather  Co.  v,  Preston  Nat.  Bank. 
114  Mich.  263;  Rumncy  v.  Detroit 
&  M.  Cattle  Co.,  129  Mich.  644. 

61  Botsford  V.  Chase,  108  Mich, 
432;  Westra  v.  Westra 's  Estate,  101 
Mich.   526. 

62  Bond    V.    McMahon,    94    Midi. 


636  Error,  Writ  of  §  54 

in  the  light  most  favorable  to  the  losing  party.^'  Where 
no  amendments  to  the  findings  of  the  trial  court  are  pro- 
posed, as  authorized  by  the  rule  of  court,  it  will  be  pre- 
sumed that  the  evidence  warranted  the  findings  made.^* 
It  will  not  be  presumed  that  the  jury  disregarded  the 
proofs  and  acted  on  something  else.®* 

§  55.  For  what  errors  judgment  will  be  reversed. 

Having  considered  the  principles  determining  what 
errors,  alleged  to  have  occurred  in  the  court  below,  will 
be  considered  by  the  supreme  court  on  writ  of  error  and 
what  will  not  be  so  considered,  it  will  be  necessary  to 
inquire  what  errors  of  those  which  will  be  considered  by 
the  supreme  court  will  constitute  a  ground  for  reversing 
the  judgment  complained  of. 

When  any  point  in  a  case  brought  up  on  writ  of  error 
is  alleged  as  error,  the  questions  presented  to  the  court 
as  a  result  thereof  are  whether  what  is  alleged  or  as- 
signed as  error  by  the  appellant  really  constitutes  an 
error,  and,  if  so,  whether  it  is  of  such  a  nature  as  may 
have  prejudiced  the  appellant,  and  whether,  in  case  it 
should  be  deemed  a  prejudicial  error,  the  appellant 
participated  in  the  fault  or  has  waived  it,  either  ex- 
pressly or  impliedly,  or  has  done  or  omitted  to  do  any- 

63  Lewis  v.  City  of  Marshall,  146  of  Detroit,  152  Mich.  445. 

Mich.   389.  But  the  rule  that  in  determining 

Where  a  verdict  is  directed  for  a  whether  a  verdict  should  have  been 

defendant    at   the    close    of    all    the  directed    for    defendant,    the    testi- 

cvidence,  the  evidence  in  plaintiff 's  niony    will    be    given    consideration 

favor  must  all  be  accepted  as  true,  most  favorable  to  plaintiff,  will  not 

and  given  the  most  favorable   con-  be    applied    so    as    to    supply    facts 

struction.      Kobinson   v.   Ward,    141  which  plaintiff  either  cannot  or  will 

Mich.  1.  not  disclose.     Higgins  v.  Peninsular 

On    reviewing    a   directed    verdict  Portland  Cement  Co.,  152  Mich.  390. 

for  defendant,   the  court   will  view  64  Cudney  v.  Sherrard,  153  Mich, 

the  evidence  of  plaintiff  most  favor-  23^;  Becker  v.  Headsten,  137  Mich, 

able  to  him,  and  indulge  in  all  rca-  478. 

sonable      inferences      therefrom      to  66  Wilcox  v.  Laflin  &  Kand  Pow- 

make  out  his  case.     Pringle  v.  City  der  Co.,  44  Mich.  35. 


§56 


Error,  Writ  of 


637 


thing  whereby  he  has  placed  himself  in  a  position  which 
will  prevent  him  from  having  any  advantage  from  it.^^ 


§56. 


Error  as  harmless  or  prejudicial. 


Even  if  some  action  of  the  court  below  appears  to  be 
error,  the  judgment  will  not  be  reversed,  unless  it  ap- 
pears that  the  appellant  was  prejudiced  by  the  error.^"'^ 
The  appellant  cannot  avail  himself  of  any  error  which 
does  not  affect  the  merits  of  the  case  and  which  could 
not  have  changed  the  result.^'  A  fortiori,  he  cannot 
complain  of  errors  which  are  in  his  favor,  and  which, 
if  they  have  any  prejudicial  effect  at  all,  operate  against 
his  opponent  only.^®    It  is  not  the  duty  of  the  appellate 


66  Who  may  allege  error,  and  es- 
toppel to  allege  error,  see  §  40,  ante. 

67Maxon  v.  Perrott,  17  Mich. 
322;  English  v.  Caldwell,  30  Mich. 
362;  Lenox  v.  Fuller,  39  Mich.  268; 
Eeading  v.  Beardsley,  41  Mich. 
123;  Swart  v.  Kimball,  43  Mich. 
443;  Barton  v.  Gray,  57  Mich.  622; 
Finan  v.  Babcock,  58  Mich.  301; 
Landon  v.  Comet,  62  Mich.  80; 
Mathews  v.  Phelps,  61  Mich.  327; 
Threadgood  v.  Litogot,  22  Mich. 
271;  Hammond  v.  Hannin,  21  Mich. 
374;  Keating  v.  Eetan,  80  Mich. 
324;  Durfee  v.  Newkirk,  83  Mich. 
522;  Monroe  Tp.  v.  Whipple,  62 
Mich.  560;  Markey  v.  Mutual,  etc., 
Ins.  Co.,  164  Mich.  350;  Granger 
V.  Darling,  156  Mich.  31;  Belmer 
V.  Boyne  City  Tanning  Co.,  160 
Mich.  669;  Matla  v.  Rapid  Motor 
Vehicle  Co.,  160  Mich.  639;  Hun- 
kins  V.  Kent,  151  Mich.  482;  Heenan 
V.  Forest  City  Paint  &  Varnish  Co., 
138  Mich.  548;  Shook  v.  Marion 
Mfg.  Co.,  138  Mich.  467;  Field  v. 
Magee,  122  Mich.  556;  McCormick 
V.  Olbinski,  132  Mich.  30;  Rivard 
V.    Rivard,    109    Mich.    98;    Gustav 


V.  Clark,  190  Mich.  381;  O'DonneU 
V.  Connecticut  Fire  Ins.  Co.,  73 
Mich.  1. 

For  excellent  treatment  of  harm- 
less error,  see  Elliott's  Appellate 
Procedure,  §  631  et  seq. 

68Lyall  V.  Sandbourn,  2  Mich. 
109;  Smith  v.  Sherwood  Tp.,  62 
Mich.  159;  Davis  v.  Bush,  28  Mich. 
432;  Eberstein  v.  Camp,  37  Mich. 
176;  Barnum  v.  Stone,  27  Mich. 
332;  Richards  v.  Tozer,  27  Mich. 
451;  Bewick  v.  Fletcher,  41  Mich. 
625;  O'Rourke  v.  O'Rourke,  43 
Mich.  58;  People  v.  Campfield,  150 
Mich.  675;  Rivers  v.  Bay  City  Trac- 
tion &  Electric  Co.,  164  Mich.  696; 
In  re  Stockdale's  Estate,  157  Mich. 
593;  Miller  v.  Tanners'  Supply  Co., 
150  Mich.  292;  Van  Cleve  v.  Rad- 
ford, 149  Mich.  106;  Pickard  v. 
Kleis,  56  Mich.  604;  Bell  v.  Zelmer, 
75  Mich.  66. 

69  Sleight  v.  Henning,  12  Mich. 
371 ;  Kelso  v.  Saxton,  40  Mich.  666 
Hudnut  V.  Gardner,  59  Mich.  341 
Brigham  v.  Gurncy,  1  Mich.  349 
Bull  V.  Brockway,  48  Mich.  523 
Clark    V.    McGraw,    14    Mich.    139 


638  Erroi!,  Writ  of  §  56 

court  to  reverse  a  judgment  unless  it  is  satislied  that 
an  error  has  been  committed  and  that  such  error  has 
done  injustice,  or  may  have  been  prejudicial,  to  the  ap- 
pellant."^" It  has  been  said  ''^  that,  while  it  is  unques- 
tionably the  duty  of  a  party  who  complains  of  error  to 
show  its  existence,  it  generally  devolves  upon  the  other 
party,  on  whose  motion  the  error  was  committed,  to 
satisfy  the  court  that  the  complaining  party  was  not 
injured  by  it,'^  and  again ''  that  it  is  incumbent  upon 
the  appellant  so  to  shape  his  case  upon  the  record  as 
to  enable  the  court  to  see  that  the  court  below  not  only 
erred,  but  erred  to  his  prejudice.''* 

This  rule  has  now  been  established  by  statute  which 
provides  that  ''no  judgment  or  verdict  shall  be  set 
aside  or  reversed,  or  a  new  trial  be  granted  by  any  court 
in  any  civil  case,  on  the  ground  of  misdirection  of  the 
jury,  or  the  improper  admission  or  rejection  of  evi- 
dence, or  for  error  as  to  any  matter  of  pleading  or  pro- 
cedure, unless  in  the  opinion  of  the  court,  after  an  ex- 
amination of  the  entire  cause  it  shall  affirmatively  ap- 
pear that  the  error  complained  of  has  resulted  in  a  mis- 
carriage of  justice. ' '  ''^    Under  this  statute,  it  is  proper 

Comstock  V.   Smith,   20   Mich.   33S;  70  Durfee    v.    Newkirk,    83    Mich. 

Fletcher     Paper     Co.     v.     City     of  522. 

Alpena,  160  Mich.  462;  Bartlett  v.  71  Campau  v.  Traub,  27  Mich.  215. 
Jenkins,  150  Mich.  682;  Hug^hes  v.  72  This  implies  that  prejudice  is 
Detroit,  etc.,  B.  Co.,  78  Mich.  399;  presumed  from  error,  -which  is  ad- 
Jackson  V.  Detroit,  etc.,  R.  Co.,  161  mitted  to  be  the  rule  in  Gold  v. 
Mich.  163;  Rogers  v.  Fowler,  151  Detroit  United  Rv.,  169  Mich.  178, 
Mich.  485;  Johnson  v.  Grondin,  170  elting  Detroit  &  Toledo  Shore  Line 
Mich.  447;  Toledo,  etc.,  R.  Co.  v.  v.  Campbell,  140  Mich.  384  and 
Johnson,  49  Mich.  148;  Hanchett  v.  Churchill  v.  Judge,  56  Mich.  536. 
McQueen,  32  Mich.  22;  Bowsher  v.  73  Kieiiards  v.  Tozcr,  27  Mich.  451. 
Grand  Rapids,  etc.,  R.  Co.,  174  Mich.  74  This  implies  that  prejudice  is 
339;  Sheehan  v.  Dalrymple,  10  not  presumed  from  error. 
Mieh.  239;  English  v.  Caldwell,  30  75  Pub.  Acts  1915,  No.  89;  Comp 
Mich.  362;  Eaton  v.  Gladwell,  121  Laws  1915,  §  14565;  Sparks  v.  Lord, 
Mieh.  444;  Eames  v.  Barber,  192  198  Mich.  420;  Montgomery  v 
Mich.  1 ;  Martinson  v.  State  Bank  Montgomery 's  Estate,  191  Mieh. 
(.1'  Bolvicw,  137  Minn.  476.  ::98:    P.arras    v.    Barras,    191    Mieh. 


I  5()  Error,  Writ  of  639 

to  afiinn  a  judgment  on  condition  that  appellee  file  a 
remittitur  of  the  excess,  where  the  judgment  is  other- 
wise coirect.'^  The  act  of  the  trial  judge  in  urging  the 
juiy  to  agree,  because  of  the  cost  of  the  trial  to  the 
county  and  the  parties,  where  they  had  announced  their 
inability  to  agree  after  being  out  two  days,  was  held, 
in  one  case,  not  a  miscarriage  of  justice,  even  if  preju- 
dicial error."  Likewise  an  erroneous  instruction  as  to 
burden  of  proof  does  not  warrant  a  reversal  where  it  is 
apparent  that  tliere  has  been  no  miscan-iage  of  justice." 
So  where  plaintiff  by  the  expenditure  of  not  to  exceed 
eight  hundred  dollars  within  a  reasonable  time  could 
have  placed  himself  in  statu  quo,  a  judgment  for  thirty- 
five  hundred  dollars  in  his  favor  for  breach  of  contract 
is  a  "miscaiTiage  of  justice."'® 

There  is  some  conflict  in  the  decisions  of  the  courts 
of  sister  states  as  to  whether  error  is  to  be  presumed 
prejudicial.  In  this  state,  in  1873,  the  supreme  court 
said:  ''But  while  it  is  unquestionably  the  duty  of  a 
party  who  complains  of  error  to  show  its  existence,  it 
generally  devolves  upon  the  other  party,  on  whose  mo- 
tion the  error  was  committed,  to  satisfy  the  court  that 
the  complaining  party  was  not  injured  by  it.'"®  In  a 
later  case,  it  was  said  that  ''where  the  jury  proceeds 
to  verdict  under  an  erroneous  instruction,  it  should  very 
clearly  appear  that  the  defeated  party  could  not,  in  any 
view  of  tlie  case,  liave  succeeded;  otherwise  prejudice 
must  be  presumed  to  follow  the  error.  "*^  On  the  other 
hand,  in  case  of  an  erroneous  instruction,  the  court  said 

473;    Snowden    v.   Detroit,   etc,   R.  78Barras    v.    Barras,    192    Mich. 

Co.,    194   Mich.    87;    People   v.    La-  584,  r>92. 

hnala,  198  Mich.  144.  79  Wallace  v.  H.  W.  Noble  &  Co., 

76  Sparks  v.  Lord,  198  Mich.  420.  203  Mieh.  58. 

See  also  Cox  v.  Ilolkobocr,  200  Mich.  80  Campau  v.  Traub,  27  Mich.  215, 

86.  216.     See  also  supra,  this  section. 

77  Snowden  v.  Detroit,  etc.,  R.  Co.,  81  Painter   v.   Lebanon  Land   Co., 
194  Mieb.  87.  164  Mich.  260,  267. 


640  Error,  Writ  of  §  56 

that  "one  alleging  error  must  show  that  he  was  preju- 
diced by  the  erroneous  ruling. ' '  ^^ 

One  of  the  most  common  grounds  for  seeking  a  re- 
versal on  a  writ  of  error  is  alleged  improper  argument 
of  counsel  before  the  jury.  Whether  the  judgment  will 
be  reversed  because  of  improper  argument  is  governed 
by  no  fixed  rule,''  and  generally  the  supreme  court  re- 
fuses to  reverse  on  such  ground  although  the  argument 
is  admittedly  improper,"  at  least  where,  on  objection 
being  made,  the  court  instructs  the  jury  to  disregard 
the  improper  statement  and  counsel  does  not  persist 
therein.'^  But  if  counsel  persists  in  improper  argu- 
ment which  is  in  its  nature  prejudicial,  a  reversal  is 
sometimes  the  result.'^  At  any  event,  error  cannot  be 
alleged  because  of  improper  argument  where  no  objec- 
tion is  made  thereto  and  no  ruling  obtained.®' 

Improper  language  of  the  judge  in  the  presence  of 
the  jury,  while  it  may  be  ground  for  reversal,  is  gen- 
erally held  not  so  prejudicial  as  to  require  a  reversal.'' 

82  Granger  v.  Darling,  156  Mich.  Mich.  532 ;  Jackson  v.  Haverf  ord 
31,  which  is  supported  by  Eichards  Cycle  Co.,  194  Mich.  286;  Rohbina 
V.   Tozer,  27   Mich.   451.  v.  Magoon  &  Kimball  Co.,  193  Mich. 

83  What  constitutes  improper  ar-  200;  Kasprzak  v.  Chapman,  197 
gument,  see  Trial.  Mich.    552;     Rogers    v.    Ford,    188 

Of   course   improper   argument   of  Mich.    62;     Crawl    v.    Dancer,    180 

counsel   is   not   ground    for   reversal  Mich.  607;   Spencer  v.  Johnson,  185 

where  it  could  not  have  affected  the  Mich.    85.      See    also    Township    of 

verdict.     Holcomb  v.  Alpena  Power  Deep    River    v.    Van    Antwerp,    174 

Co.,  175  Mich.  500.  Mich.  19. 

84  Case  v.  Rudolph  Wurlitzer  Co.,  In  one  case,  argument  was  held 
186  Mich.  81.  See  also  Collin  v.  not  ground  for  reversal  whore  ob- 
Kittelberger,  193  Mich.  133,  and  jcction  was  sustained  and  the  attor- 
Trial.  ney   asked   no    instruction   from   the 

Argument  tending  to  enhance  darn-  court    to    disregard    the    argument, 

ages  was  not  prejudicial  where  de-  B.  F.  Goodrich  Rubber  Co.  v.  Sewell 

fendant's    attorneys    conceded    that  Cushion   Wheel  Co.,  196  Mich.  600. 

if  a  legal  liability  was   established  86  Solomon  v.  Stewart,  184  Micii. 

the  verdict  was  not  excessive.  Bosek  506. 

V.  Detroit  United  Ry.,  175  Mich.  8.  87  See  §  46,  ante. 

85  Goldman  v.  Detroit  United  Ry.,  88  Murphy  v.  Manistee  R.  Co., 
200  Mich.  543;  Gallant  v.  Miles,  200  194  Mich.   595;    Jolman   v.   Alberts, 


§  56  Error,  Writ  of  641 

So  the  erroneous  admission  or  rejection  of  evidence  is 
not  ground  for  reversal  where  not  affecting  the  result,  ®* 
and  the  same  is  true  as  to  erroneous  instructions  to  the 
jury  or  refusals  to  instruct.®''  Thus,  the  erroneous  ad- 
mission of  evidence  is  harmless  where  the  question  to 
which  it  relates  is  withdrawn  from  the  jury.®^  So,  of 
course,  if  a  juror  is  excused  for  cause,  any  error  in  the 
court  refusing  to  permit  a  question  to  be  asked  him  on 
his  voir  dire  examination  is  harmless.®^ 

In  some  states  any  reference  to  defendant  being  in- 
sured, whether  in  the  argument  to  the  jury,  the  examina- 
tion of  witnesses,  or  in  the  examination  of  jurors  on  their 
voir  dire,  is  reversible  error.  In  other  states,  the  mis- 
conduct ordinarily  is  held  not  ground  for  reversal.  In 
Michigan  the  question  has  not  been  decided  although 
in  one  case  the  irregularity  in  questioning  a  juror  on  his 
voir  dire  as  to  his  agency  for  an  insurance  company  was 
held  waived  by  passing  the  jury  for  cause.®' 

Whether  a  reversal  is  required  where  a  party  is  guilty 
of  misconduct  in  the  court  room  is  governed  by  no  fixed 
rule.  In  a  late  case,  where  the  nervous  system  of  plain- 
tiff was  claimed  to  have  been  shattered  by  the  accident 
which  was  the  subject  of  the  litigation,  it  appeared  that 
shortly  after  her  examination  was  finished  loud  scream- 
ing and  shrieking  was  heard  as  coming  from  the  cor- 
ridor, and  a  trained  nurse  then  on  the  stand  as  a  witness 
for  plaintiff  left  the  room  at  the  request  of  plaintiff's 
counsel  who  said  "This  is  what  I  feared."  The  court 
then  properly  instructed  the  jury  to  disregard  anything 

192  Mich.  365.    See  also  Trial.  90  See  Instructions  to  Jury. 
Attempt    to    coerce    verdict,    see  91  Bamlet  Realty  Co.  v.  Doff,  183 

Holtquist    V.    O'Connell,    196    Mich.  Mich.  694. 

484.  92  William    R.    Roach    &    Co.    v. 

89  Thomas  v.  Bush,  200  Mich.  224;  Blair,   190  Mich.  11. 

Edison    Illuminating    Co.    v.    Misch,  93  Snyder  v.  Mathison,  196  Mich. 

200    Mich.    114;    Horowitz   v.    Blay,  378. 

193  Mich.  493. 

1  Abbott— 41 


642  Error,  Writ  of  §56 

taking  place  outside  the  court  room  and  denied  defend- 
ant's motion  for  a  mistrial.  The  supreme  court  held 
that  there  was  no  miscarriage  of  justice  and  affirmed  a 
judgment  for  plaintiff.^* 

§  57.  Judgment  in  supreme  court. 

If  the  supreme  court,  after  considering  the  questions 
wliich  liave  been  properly  presented  to  it,  finds  no  error 
to  have  been  committed  wliieh  did,  or  may  have,  preju- 
diced tlie  appellant,  and  of  which  he  is  in  position  to 
complain,  it  will  affirm  the  judgment  of  the  court  below; 
but,  if  it  finds  such  error  to  liave  been  committed,  it  will 
either  reverse  the  entire  judgment  of  the  lower  court  or 
reverse  it  in  part  and  affirm  it  in  part.  The  judgment 
should  be  affirmed  where  a  reversal  will  be  ineffectual  or 
not  beneficial,  as  where  the  same  judgment  must  be  again 
rendered  on  a  new  trial.^^  And  where  the  supreme  court 
is  divided  in  opinion,  the  judgment  will  l)e  affirmed.^^  A 
judgment  will  not  be  reversed  to  enable  a  defendant  to 
avail  himself  of  a  possible  defense,  which,  although  good 
in  law,  is  without  equity.^'  A  judgment  for  defendant 
should  not  be  reversed  because  nominal  damages  were 
recoverable,  where  plaintiff  could  not  recover  costs  on  a 
judgment  for  nominal  damages.^* 

94Golf"lman  v.  Detroit  United  Ry.,  90;  People  v.  Ingham  Circuit  Judge, 

200  Mich.  543.     See  also  Gagush  v.  .'57  Mic-h.  .'577. 

Hoeft,  198  Mich.  26.3.  97  Hill  v.   Rolibins,  22   Mich.  475. 

95Altnian  v.  Fowler,  70  Mich.  57.  98  Stevens  v.  Yale,  113  Mich.  680; 

96  Penniman    v.    Perce,    9    Mich.  Haven  v,  Beidler  Mfg.  Co.,  40  Mich. 

509;   Michigan  Cent.  R.  Co.  v.  Lea-  286;    Mears   v.    Cornwall,    73    Mich. 

hey,  10  Mich.  193;   Marquette  &  O.  78. 

R.  Co.  V.  Taft,  28  Mich.  289;  Sands  Failure   to   assess  merely   nominal 

v.    Finan,    38    Mich.    616;    Rose    v.  damages,  where  no  question  of  per- 

French,   39    Mich.    136;    Mitchell   v.  manent    legal    right    is    involved,    is 

Mitchell,    49    Mich.    68;    Nester    v.  not   ground   for   reversal.     Lewis   t. 

Swift,  50  Mich.  42 ;  Dutch  Reformed  Flint    &    P.    M.    Ry.    Co.,    56    Mich. 

Church      Cases,      52      Mich.      329;  638. 

McPhcrson    v.    Ryan,    59    Mich.   33;  Where    i)laintiff   can   recover  only 

Hoffman    v.    Harrington,    28    Mich.  nominal  damages,  a  judgment  for  de- 


§  57  Error,  Writ  of  643 

Where  a  jiulgiiieiit  or  order  is  correct,  it  will  not  be 
reversed  because  the  court  gave  a  wrong  or  insufficient 
reason  for  its  rendition.^^ 

Form   of  Judgment   Affirming   Judgment  of  Circuit   Court 
At  a  session  of  the   Supreme   Court   of  the  State  of   Michigan,  held  at 

the  Supreme  Court  Eoom,  in  the  City  of  Lansing,  on  the day  of 

,  A.  D 

Present,  the  Honorable    , 

Chief  Justice. 


Associate  Justices. 
(Title  of  cause.) 
The  record  and  proceedings  in  this  cause  having  been  removed  to  this 

court  by  writ  of  error,  issued  to  the  circuit  court  for  the  county  of , 

and  the  same  and  the  matters  in  error  assigned  having  been  seen  and  in- 
spected and  duly  considered  by  the  court,  and  it  appearing  to  this  court  that, 
in  such  record  and  proceedings,  and  in  the  giving  of  judgment  in  said  cir- 
cuit court,  there  is  no  error;   therefore  it  is  ordered  and  adjudged  that  the 

judgment  of  the  said  circuit  court  for  the  county  of be,  and  the  same 

hereby  is,  in  all  things  affirmed,  and  that  the  defendant  and  appellee  do  re- 
cover of  the  plaintiff  and  appellant  his  costs,  to  be  taxed,  and  that  he  have 
execution  therefor. 

Form  of  Judgment  Reversing  Judgment  of  Circuit  Court 

At  a  session  of  the  Supreme  Court  of  the  State  of  Michigan,  held  at  the 

Supreme  Court  Eoom,  in  the  City  of  Lansing,  on  the day  of , 

A.  D 

Present,  the   Honorable    , 

Chief  Justice. 


Associate  Justices. 

fendant    will    not    be    reversed    on  nominal   damages  only,  a   new   trial 

error.     Laetz  v.  Tierney,  15;i  Mich.  will  not  be  awarded  unless  the  pro- 

279;    International    Text    Book    Co.  tection  of  substantial  rights  require 

v.  Schulte,  l.')l  Mich.  149.  it.     Lewis  v.  Flint  &  P.  M.  Ry.  Co., 

Whore   the    case   is   such    that   on  56  Midi.   fi.'JS. 

a   new   trial    the   party   complaining  99  Crawley    v.    Studebaker    Corp., 

of  error  would  be  entitled  to  recover  183    Midi.    462;    Eamcs    v.    Barber, 


644  Error,  Writ  of  §  57 

(Title  of  cause.) 
The  record  and  proceedings  in  this  cause  having  been  removed  to  this 

court  by  writ  of  error,  issued  to  the  circuit  court  for  the  county  of , 

and  the  same  and  the  matters  in  error  assigned  having  been  seen  and  in- 
spected and  duly  considered  by  the  court,  and  it  appearing  to  this  court 
that  in  said  record  and  proceedings,  and  in  the  giving  of  the  judgment  in 

said  circuit  court  for  the  county  of ,  there  is  manifest  error;  therefore, 

it  is  ordered  and  adjudged  by  the  court  that  the  judgment  of  the  said  circuit 

court  for  the  county  of   be,  and  the  same  hereby  is,  reversed  and 

vacated,  and  that  the  said  plaintiff  and  appellant  do  recover  of  the  said 
defendant  and  appellee  his  costs,  to  be  taxed,  and  that  he  have  execution 
therefor,  and  that  this  cause  be  remanded  to  the  court  below  for  a  new 
trial. 

§  58.  When  court  will  order  new  trial  on  reversal. 

If  the  judgment  of  the  court  below  be  reversed,  tlie 
supreme  court  will  sometimes  enter  a  final  judgment  in 
the  case  and  sometimes  will  order  the  case  sent  back  to 
the  lower  court  for  a  new  trial.  Whether  it  will  do  the 
one  or  the  other  depends  upon  the  condition  of  the  record 
before  the  supreme  court.  If  the  record  is  such  that  the 
court  can  determine  the  merits  of  the  case,  the  court  will 
dispose  of  it  by  entering  final  judgment,  but,  if  the  record 
is  such  that  it  affords  the  court  no  certain  ground  for 
ascertaining  the  merits,  a  final  judgment  will  not  be 
entered,  but  the  case  will  be  sent  back  for  a  new  trial  in 
the  court  below.  Thus,  where  a  case  has  been  submitted 
in  the  court  below  upon  an  agreed  state  of  facts,  no  new 
trial  will  be  granted  upon  a  reversal  of  the  judgment  in 
the  supreme  court.^  So,  where  the  plaintiff's  declaration 
discloses  no  cause  of  action  against  the  defendant,  a  new 
trial  will  not  be  ordered.^    And,  on  the  same  principle,  a 

192  Mich.  1;  Benson  v.  Bawden,  149  neous.      Perry    v.    Michigan    Alkali 

Mich.   584;   Wright  v.  De  Groff,  14  Co.,  150  Mich.  537. 
Mich.  164;  Black  v.  Miller,  75  Mich.  1  Harrington  v.  Hilliard,  27  Mich. 

323.  271;   Barman  v.  Carhartt,  10   Mich. 

Where    the    trial    court    properly  338;    Brown   &    Brown   Coal   Co.    v. 

directed  a  verdict,  the  Judgment  will  Antezak,  164  Mich.  110. 
not  be  reversed  because  the  grounds  2  Altman  v.  Fowler,  70  Mich.  57 ; 

for  directing  the  verdict  were  erro-  Delashman  v.  Berry,  21  Mich.  516; 


§  58  Error,  Writ  of  645 

new  trial  will  not  be  granted  where  the  count  of  the 
declaration  on  which  the  verdict  rests  presents  no  cause 
of  action,  even  though  the  plaintiff  might  have  recovered 
on  some  other  count.*  But  it  has  been  held  that,  where 
the  declaration  is  fatally  defective,  if  no  error  is  as- 
signed on  it,  the  court,  in  reversing  the  judgment,  must 
go  through  the  f oitq  of  ordering  a  new  trial ;  *  and, 
though  no  recovery  could  be  had  on  a  declaration  as  it 
stands,  but  it  is  such  that  the  trial  court  should  have 
allowed  an  amendment  if  asked,  a  new  trial  must  be 
awarded  on  reversal.^  But,  where  the  record  shows  that, 
even  if  the  declaration  were  sufficient,  there  can  be  no 
right  of  action  against  the  defendant,  a  new  trial  will 
not  be  granted,®  and  likewise  where  no  recovery  can  be 
had  under  the  bill  of  particulars.' 

A  new  trial  will  not  be  granted  where  the  court  below 
has  no  jurisdiction  to  try  the  case,^  or  where  the  case  is 
such  that,  on  a  new  trial,  the  party  complaining  of  error 
would  be  entitled  to  recover  nominal  damages  only, 
which  would  not  carry  costs,  unless  the  protection  of  sub- 
stantial rights  requires  a  new  trial.* 

But  where  the  court  has  no  means  of  knowing  how  the 
jury  made  up  their  verdict,  even  though  it  be  special 
verdict,  a  final  judgment  cannot  be  entered  in  the  su- 

Dayton    v.    Fargo,    45    Mich.    153;  Mich.  246;   Allen  v.  Milwaukee  Me- 

Webb  V.   Leominster   Shirt  Co.,  101  chanics'    Ins.    Co.,    106    Mich.    204; 

Mich.   136;    In  re   Hiscoek's  Estate,  Rasch    v.    Bissell,    106    Mich.    106; 

79    Mich.    536;    Fisher   v.    Radford,  Wadhams  v.  Western  Assur.  Co.,  117 

153   Mich,   385.  Mich.  514;  Mynning  v.  Detroit,  etc., 

3  Dayton  v.  Fargo,  45  Mich.  153.  E.  Co.,  67  Mich.  677. 

4  Hart  v.  Brockway,  57  Mich.  189.  7  Sheldon    v.    Rounds,    40    Mich. 
6  Hamilton    v.    Powers,    80    Mich.  425. 

313.  8  Bush  V.  Meacham,  53  Mich.  574. 

6  People  V.  Morrison,  75  Mich.  30;  »  Lewis  v.   Flint,  etc.,  R.  Co.,  56 

Flagg   V.   Chicago,   etc.,   R.    Co.,   96  Mich.   638;    Haven  v.   Beidler  Mfg. 

Mich.   30;    In   re   Hiscoek's   Estate,  Co.,  40  Mich.  286;   Stevens  v.  Yale, 

79  Mich.  536;   Cobbs  v.  Hixson,  75  113  Mich.  680;  Lactz  v.  Tierny,  153 

Mich.    260;    Harris    v.    Harris,    106  Mich.  279. 


646  Error,  Writ  of  §  58 

preme  court. ^"  So,  where  a  case  tried  by  the  court  below 
without  a  jury  comes  to  the  supreme  court  without  a 
finding  of  facts,  final  judgment  cannot  be  entered  in  the 
supreme  court,  but  there  must  be  a  new  trial;  "  and  the 
same  course  has  to  be  pursued  where  the  finding  of  the 
court  or  the  verdict  of  the  jury  or  the  report  of  a  referee 
does  not  cover  the  whole  case.^^  The  supreme  court  has 
no  power  to  assess  damages,  and,  where  the  amount  to 
which  the  plaintiff  is  entitled  is  not  liquidated  by  the 
finding  and  there  is  no  basis  of  fact  settled  by  the  finding 
to  regulate  and  fix  the  amount,  a  ncAV  trial  will  be  neces- 
sary." 

Where  a  finding  or  verdict  is  wholly  different  from 
what  it  would  have  been  if  erroneously  rejected  evi- 
dence had  been  admitted,  the  case  must  be  re-tried."  A 
judgment  of  reversal  without  remanding  for  a  new  trial, 
is  ordinarily  not  proper,  where  the  reversal  is  for  insuffi- 
ciency of  the  evidence, ^^  or  because  of  erroneous  instruc- 
tions,^^ or  where  the  reversal  is  for  failure  to  prove  facts 
necessary  to  warrant  a  default  judgment,  where  an 
amended  return  might  be  filed  curing  the  defect." 
Where  the  report  of  a  referee  is  too  defective  to  author- 
ize the  entry  of  any  judgment,  a  new  trial  will  be 
granted."  A  new  trial  must  be  ordered  where  the  su- 
preme court  judgment  would  permit  the  plaintiff  to  re- 

10  Johnson    v.    Ballou,    28    Mich.  also  Wiley  v.  Lovely,  46  Midi.   8'.i; 

379;    Baylis    v.    Cronkitc,    .S9    Mich.  Eanies  v.  Barber,  192  Mich.  1. 

413.  14  Starkweather     v.     Martin,      28 

llBiddlc    V.    Wendell,    37    Mich.  Mich.  471. 
452 ;   Flint,  etc.,  R.  Co.  v.  Weir,  37  15  Montmorency    County    v.    Put- 
Mich.   111.  nam,  135  Mich.  111. 

12  Briggs  V.  Brushaber,  43  Mich.  16  Schniid  v.  Village  of  Frankfort, 
330;  Carroll  v.  Grand  Trunk  E.  Co.,  134  Mich.  619. 

19    Mich.   94;    Power    Specialty   Co.  17  Anderson    v.    Cole,    114    Mich. 

V.    Michigan    Power   Co.,    190   Mich.  637. 

699.  18  Carroll  v.  Grand  Trunk  R.  Co., 

13  Carmichael      v.      Northwestern  19   Mich.  94. 
Mut.  Ben.  Ass'n,  51  Mich.  494.    See 


§59  Error,  Writ  op  647 

cover  ono-lialf  more  than  he  is  entitled  to.^^    Other  de- 
cisions will  be  found  in  the  note  below. ^° 

§  59.  Reversal  in  part. 

Where  a  judgment  is  severable,  so  that  so  much  of  it 
as  is  affected  by  error  may  be  separated  from  that  which 
is  not,  it  may  be  reversed  in  part  and  affirmed  in  part.^^ 

Thus,  where  the  judgment  is  for  distinct  things,  as  for 
damages  and  costs,  there  may  be  an  affirmance  in  part, 
and  a  reversal  as  to  the  residue.  So  where  the  judgment 
improperly  includes  an  amount  whicli  is  certain,  but  is 
otherwise  correct,  the  supreme  court  will  reverse  the 
judgment  as  to  such  amount,  and  affirm  it  as  to  the  bal- 
ance.^^  And  where  a  judgment  for  treble  the  damages  is 
improper  as  to  the  amount  of  damages,  inasmuch  as  only 
single  damages  should  be  awarded,  it  is  proper  to  affirm 
the  judgment  for  single  damages.^'  Excessiveness  of  the 
verdict  is  not  ground  for  remanding  for  a  new  trial, 
where  the  items  objected  to  can  be  stricken  out,  and  a 
judgment  rendered  for  those  regarding  which  no 
error  is  shown.^*  So  appellee  may  remit  any  excess,  and 
the  judgment  may  thereupon  be  affirmed;  ^®  or  the  affirm- 
ance may  be  conditioned  on  remitting  the  portion  of  the 
recovery  which  is  excessive.^^  Generally,  a  judgment 
cannot  be  affirmed  as  to  one  or  more  defendants,  and 
reversed  as  to  others.^^    This  is  so  notwithstanding  the 

19  Baylis  v.  Cronkite,  39  Mich.  413.  for  the  amount  of  his  set-off.     Jor- 

20  A  new  trial  will  be  granted  on  dan  v.  Walker,  154  Mich.  394. 
reversal   on  error  where   a  question  21  Powers  v.   Irish,  23  Mich.  429. 
of  fact  raised  by  the  evidence  was  22  People  v.  Banhagel,  151  Mich.  40. 
not   submitted  to   the   jury.     Bryan  23  Skeels  v.  Starrett,  57  Mich.  350. 
V.  Straus  Bros.  &  Co.,  157  Mich.  49.  24  Sloman     v.     Mercantile     Credit 

In   an   action   on   an   express   con-  Guarantee  Co.,   112  Mich.  258. 

tract,  where  defendant's  set-off  was  26  McCorniick     Harvesting     Mach. 

allowed     against     the     verdict     for  Co.   v.  McKee,  51   Mich.  426;   Bres- 

plaintiff,    and    defendant    appealed,  nahan  v.  Nugent,  97  Mich.  359. 

but  plaintiff  did  not,  judgment  on  26  McDonald  v.  Smitli,  139   Mich, 

reversal  of  the  judgment  for  plain-  211. 

tiff  will   be  rendered   for  defendant  27  Powers  v.  Irish,  23  Mich.  429; 


648  Error,  Writ  of  §  59 

error  sustained  affected  one  of  the  defendants  only,  as, 
where  one  was  an  infant  and  appeared  by  attorney,^®  or 
one  was  protected  as  a  judicial  officer  while  the  other 
was  liable,^'  or  judgment  was  rendered  against  two,  one 
of  whom  had  not  been  brought  in  by  process  or  other- 
wise.^'' So  strictly  is  the  rule  referred  to  applied  that  a 
release  of  errors  by  the  party  against  whom  the  error 
has  been  committed  will  not  bar  the  writ  as  to  the 
others.^^ 

§60.  Costs. 

The  right  to  recover  costs  on  a  writ  of  error  is  entirely 
statutory  and  did  not  exist  at  common  law.^*^ 

It  has  been  said  that  a  reversal  of  a  judgment  and  an 
order  for  a  new  trial  is  in  effect  an  allowance  of  the  costs 
of  the  supreme  court  to  the  prevailing  party;  ^^  and  that 
where  the  supreme  court  reverses  or  affirms  without 
mentioning  costs  in  the  opinion,  costs  in  favor  of  the  pre- 
vailing party  follow  as  a  matter  of  course  by  a  general 
direction  to  the  clerk,^* 

§  61.  Costs  as  discretionary. 

Under  the  statutes  costs  are  discretionary  where  there 
is  a  reversal  and  a  new  trial  is  directed  or  where  the 

Matteson    v.    Nathanson,    38    Mich.  32  Jeffery  v.  Hursh,  58  Mieh.  246, 

377;  Hall  v.  Calhoun  Circuit  Judge,  258. 

123  Mich.  555.  33  Seymour   v.   Bruske,   140   Mich. 

28  Powers  V.  Irish,  23   Mich.  429,  244,  253. 

citing  Arnold  v.  Sandford,  14  Johns.  34  Jarrait  v.  Peters,  151  Mich.  99, 

(N.  Y.)    424;    Cruikshank  v.   Gard-  where  the  court  said:    "While  see- 

ner,  2  Hill  (N.  Y.)   333.  tion  11271,  Comp.  Laws,  leaves  the 

88  Powers  V.  Irish,  23  Mich.  429,  costs   within   the    discretion    of    the 

citing     Harman     v.     Brotherson,     1  court  in  a  case  where  a  new  trial 

Denio   (N.  Y.)   537.  is   ordered,   by   general   direction  to 

30  Powers  V.  Irish,  23  Mich.  429,  the  clerk  the  journal  entry  always 
citing  Richards  v.  Walton,  12  includes  an  award  of  costs  in  case 
Johns.   (N.  Y.)  434.  of  reversal  or  affirmance,  unless  di- 

31  Powers  v.  Irish,  23  Mich.  429,  rection  to  the  contrary  be  given  in 
citing    Blanchard     v.     Gregory,     14  the  opinion." 

Ohio  413. 


§62 


Error,  "Writ  of 


649 


judgment  is  affirmed  in  part  and  reversed  in  part.'* 
Where  the  allowance  of  costs  is  discretionary,  and  the 
conduct  of  the  prevailing  party  is  obnoxious  to  a  sense 
of  justice,  costs  will  not  be  allowed.^®  So  where  there  is 
a  reversal  and  a  new  trial  ordered,  costs  should  be  re- 
fused where  the  reversal  is  based  on  the  ground  that  the 
result  in  the  trial  court  was  in  the  nature  of  a  mistrial.^'' 


§62. 


When  judgment  reversed. 


By  statute,  if  the  judgment  be  reversed,  the  appellant 
will  be  entitled  to  recover  costs,  unless  a  new  trial  is 
ordered,  in  which  case  the  costs  are  in  the  discretion  of 
the  court.  If  the  judgment  be  reversed  in  part  and 
affirmed  in  part,  costs  will  be  awarded  to  either  party  in 
the  discretion  of  the  court.^^  A  reversal  and  order  for  a 
new  trial  are,  in  effect,  an  allowance  of  the  costs  of  the 
su-preme  court  to  the  appellant.^® 


35Jud.  Act,  ch.  47,  §20;  Comp. 
Laws  1915,  §13701.  See  Ells  v. 
Rector,  32  Mich,  379. 

Where  point  on  which  a  reversal 
in  part  was  ordered  was  not  raised 
in  the  court  below  nor  in  the 
supreme  court  until  the  hearing  was 
had,  costs  were  refused,  in  Snell  v. 
Eace,  78  Mich.  334. 

Where  a  judgment  is  reversed  but 
a  new  trial  ordered,  and  the  rever- 
sal is  because  of  the  iniquity  of  the 
transactions  out  of  which  the  claim 
arises,  costs  will  not  be  awarded  the 
appellant  for  being  successful  in  a 
defense  based  on  his  own  turpitude. 
Williams  v.  Guarde,  34  Mich.  82. 

36  Russell  v.  North  American  Ben. 
Ass'n,  116  Mich.  699. 

37  Demill  v.  Moffat,  45  Mich.  410 ; 
Watts  V.  Tittabawassce  Boom  Co., 
47  Mich.  540 ;  Rayl  v.  Hammond 's 
Estate,  95  Mich.  22. 

On  a  case  made  where  the  supreme 
court    set    aside    the    judgment    be- 


cause of  a  mistrial,  and  ordered  an- 
other trial,  it  refused  to  allow  costs 
to  either  party.  Adams  v.  Cham- 
pion, 31  Mich.  233;  Armstrong  v. 
Adams,   31   Mich.   236. 

38Jud.  Act,  ch.  47,  §20;  Comp. 
Laws  1915,  §13701;  Powell  v. 
Pierce,  168  Mich.  427. 

Where  appellant  obtains  a  sub- 
stantial reduction  of  the  judgment, 
costs  should  be  awarded  him.  Mac- 
Gillis  V.  Alcona  County,  197  Mich. 
40. 

For  division  of  justices  as  to 
costs  where  judgment  reversed  in 
part,  see  Garlock  v.  Motz  Tire  & 
Rubber  Co.,  192  Mich.  665,  679. 

Appellant  is  entitled  to  costs  on 
reversal  although  the  ground  for 
reversal  was  an  act  of  the  trial 
judge  of  his  own  motion  in  direct- 
ing a  verdict.  Hoak  v.  Kellogg, 
146  Mich.  541. 

39  See   §  60,   ante. 


650  Error,  Writ  of  §  62 

However,  this  statute  is  not  niaiidatoiy,  it  seems,  and 
costs  are  not  always  awarded  the  appellant  by  the  su- 
preme court  on  reversal  even  where  no  new  trial  is 
ordered.*"  Generally,  if  appellant  prevails  unless  ap- 
pellee remits  a  part  of  the  recovery,  costs  are  awarded 
ai)pellant.*^  Where  no  index  is  furnished,  costs  will  not 
be  awarded  appellant  on  a  reversal,*^  or  at  least  no  costs 
for  the  printing  of  the  record." 

Where  the  judgment  is  reversed  with  costs  and  a  new 
trial  ordered,  the  appellant  is  entitled  to  tax  only  the 
costs  which  accrued  in  the  supreme  court.  The  costs  in 
the  court  below,  in  such  case,  unless  otherwise  specially 
directed,  abide  the  event  of  the  new  trial.**  Where  a  new 
trial  is  ordered  on  reversal  of  a  ijudgment  in  ejectment 
and  the  appellant  is  awarded  the  costs  of  both  courts, 
this  includes  the  costs  of  the  supreme  court  and  of  the 
trial  in  the  court  below,  but  the  costs  of  former  trials,  if 
there  have  been  any,  abide  the  event  of  the  suit.*®  Costs 
of  both  courts  were  allowed  on  reversal  with  a  new  trial 
where  recovery  was  had  on  a  declaration  which  made  out 
no  cause  of  action.*^  Where  a  judgment  without  any  sup- 
port in  the  facts  as  found  by  a  referee  was  reversed,  the 
appellant  was  allowed  the  costs  of  both  courts;*'  and, 
where  conflicting  evidence  was  taken  from  the  jury  and 
a  new  trial  became  necessary  in  order  that  it  might  be 
passed  upon  by  a  jury,  the  reversal  was  with  the  costs  of 
both  courts.*®    But  where  a  judgment  by  default  for  the 

40  Powell    V.    Pierce,     168    Mich.  43  Wcstfall    v.    Board    of    Water 
427,    433,     where    the     court    said:       Com 'rs,  93   Mich.  210. 

"The    judgment    is    in    all    respects  44  Lester   v.   Sutton,   7  Mich.   329. 

reversed,  and,  as   it  cannot  be  said  See  also  Singer  Mfg.  Co.  v.  Benja- 

that  upon  the  points  decided  either  min,    55    Mich.    330;    Crittenden    v. 

party  has  prevailed,  neither  will  re-  Schermerhorn,  35  Mich.  370. 

cover  costs  of  this  court."  46  Jeffery  v.  Hursh,  58  Mich.  246. 

41  Allen     v.     Patrons',     etc.,    Ins.  46  Smith  v.  Eoss,  51  Mich.  116. 
Co.,  165  Mich.  18,  24.  47  Ives  v.  O'Brien,  33  Mich.   175. 

42  McLclland  v.  A.  P.  Cook  Co.,  48  Singer  Mfg.  Co.  v.  Benjamin, 
94  Mich.   528,  dicta.  oo   Mich.   330. 


§  63  Error,  Writ  of  651 

defendant's  non-appearance  in  the  court  below  was  re- 
versed, the  appellant  was  allowed  to  recover  only  the 
costs  of  the  supreme  court.*^  Where  a  judgment  was  set 
aside  on  the  ground  of  a  mistrial,  no  costs  were  awarded 
to  either  party;  *®  and,  if  a  suit  has  been  instituted  in  the 
name  of  a  municipality  without  authority,  no  costs  can 
])e  awarded  against  it  upon  reversal  of  a  judgment  in  its 
favor.^^ 

§  63.  When  judgment  affirmed. 

If  the  judgment  be  affirmed,  or  the  writ  of  error  be  dis- 
continued or  quashed,  or  the  appellant  be  non-suited,  the 
appellee  will  be  entitled  to  recover  costs."  This  statute, 
however,  is  not  mandatory  and  numerous  exceptions 
have  been  engrafted  thereon  by  judicial  decisions.  For 
instance,  where  an  important  error  has  been  amended  or 
c-iired  by  a  correction  of  the  record  in  the  trial  court  after 
the  taking  of  the  appeal.^^  So  no  costs  are  recoverable 
wlien  the  judgment  of  the  court  below  is  affirmed  by  an 
equally  divided  court;  ^*  and,  in  an  amicable  suit  to  test 
the  validity  of  a  statute,  it  is  proper  to  deny  costs  to  the 
prevailing  party  on  affirmance  of  the  judgment  of  the 
lower  court."  Costs  were  withheld,  also,  wliere  there 
was  error,  but  tlie  error  did  not  affect  tlie  result  and  the 

49  Bagley  v.  Pridgeon,  42  Mich.  Eule  applied  where  appellant  re- 
S.IjO.  niits  excess  and  thereafter  appellee 

50  Adams  v.  Champion,  ?,l  Mich.  brings  the  case  to  a  hearing.  Hall 
2.'!:'.;  Demill  v.  Moffat,  4.'')  Mich.  410;  v.  Concordia  Fire  Ins.  Co.,  90  Mich. 
Wiidey   v.   Farmers'  Mnt.   Fire  Ins.  403. 

Co.,  40  Mich.  264;  Kinney  v.  Robin-  53  Rogers    v.    Andersjon,    40    Mich, 

son,  49  Mich.  247;  Watts  v.  Tittaba-  290. 

wassee    Boom    Co.,    47    Mich.    rAO;  54  Whiting    v.    Butler,    29    Mich. 

Guerin  v.  Smith,  62  Mich.  .169;  Royl  122;  Lndington  v.  Melendy,  44  Mich. 

V.  Hammond's  Estate,  95  Mich.  22.  .'360;     Clark    v.    Mitchell,    48    Mich. 

51  City  of  Muskegon  v.  S.  K.  Mar-  200;  Rose  v.  French,  .'^9  Mich.  i:?6; 
tin  Lumber  Co.,  86  Mich.  62.5.  Wright  v.   Smith,  44   Mich.   .^eO. 

52Jiid.   Act,   ch.   47,   S21;    Comp.  55  Smith    v.   First   Nat.   Bank,    17 

Laws  191.'),   §  l.'}702.  Mich.  479. 


652  Error,  Writ  of  §  63 

judgment  was  affirmed;  ^^  and,  when  the  question  before 
the  court  is  a  new  one  and  has  been  dealt  with  on  both 
sides  under  a  misai)prehension  of  the  statute,  the  parties 
were  left  to  pay  their  own  costs  upon  affirmance  of  the 
judgment."  Costs  w^ere  withheld  on  the  affirmance  of  a 
judgment  for  a  plaintiff  in  ejectment  where  the  plaintiff, 
while  proving  full  title,  had  omitted  to  set  forth  his  title 
as  required  by  the  statute;  "  and  where  both  parties  have 
sued  out  a  writ  of  error  and  the  judgment  of  the  court 
below  is  affirmed,  no  costs  are  usually  allowed.^^  The 
failure  of  the  appellee  to  file  a  brief  is  also  sufficient  rea- 
son for  not  allowing  costs.^° 

§  64.  Damages  for  delay  and  vexation. 

If,  upon  a  writ  of  error,  the  judgment  be  affirmed  or 
the  w^rit  be  discontinued  or  quashed  or  the  appellant  be 
non-suited,  the  supreme  court  may,  in  its  discretion, 
assess  damages  for  the  delay  and  vexation,  in  addition 
to  the  costs  which  the  appellee  would  otherwise  be  en- 
titled to  recover ;  ^^  and,  if  the  judgment  so  affirmed  was 
rendered  after  a  verdict,  the  appellee  may,  in  the  discre- 
tion of  the  court,  recover  twice  the  amount  of  his  taxed 
bill  of  costs.^^  However,  such  damages  should  not  be 
awarded  except  in  plain  cases.^^ 

Where  error  was  brought  on  a  judgment  taken  by  con- 

56Finan     v.     Babeock,    58    Mich.  60  Brick  v.   Brick,   65   Mich.  230; 

301.  Hoffman  v.  Hoffman,  155  Mich.  328 ; 

67  In  re  Smith's  Estate,  60  Mich.  Sawtells   v.   Howard,   104   Mich.   54. 

136.  eiJud.   Act,  ch.   47,    §21;    Comp. 

58  Fisher  v.  Hallock,  50  Mich.  463.  Laws  1915,  §  13702. 

59  Employees'  Liability  Assur.  Additional  attorney 's  fee  awarded 
Corp.  V.  Grand  Eapids  Bridge  Co.,  for  vexatious  appeal  in  Toles  v. 
137   Mich.   351;    Thayer   v.   City   of  Moddaugh,  106  Mich.  398. 

Grand   Rapids,   82    Mich.   298.  62  Jud.   Act,   ch.   47,    §22;    Comp. 

When   each   party   sued  out   writs  Laws   1915,    §  13703. 

of   error  and  each   failed,  no  costs  68  See   In   re   Marx's  Estate,   201 

were  awarded  to  either  party.    Ball  Mich.  504,  where,  however,  damages 

V.  Watertown  Fire  Ins.  Co.,  44  Mich.  were  awarded. 
137. 


I  64  Error,  Writ  of  653 

fession  on  a  promissory  note,  and  the  errors  assigned 
consisted  of  mere  irregularities  in  the  entering  of  judg- 
ment, it  was  held  a  proper  case  for  awarding  damages 
to  the  appellee,  on  affirming  the  judgment,  for  the  delay 
and  vexation  consequent  upon  the  issuing  of  the  writ  of 
error.^*  Where,  upon  affirming  a  judgment,  it  appears  to 
the  court  that  the  errors  assigned  are  frivolous,  special 
damages  will  be  awarded  for  the  delay  and  vexation.®* 
So,  where  the  case  is  evidently  taken  up  merely  for  de- 
lay, the  court  in  affirming  the  judgment  will  generally 
award  an  additional  sum  to  the  appellee  by  way  of  pen- 
alty for  the  vexatious  appeal.^®  But  damages  of  this  sort 
will  be  refused  if  the  court  is  not  satisfied  of  a  want  of 
good  faith  in  bringing  the  writ  of  error;  ^^  and,  where 
•there  has  been  a  partial  reversal,  even  for  a  small 
amount,  the  court  will  refuse  damages  as  for  a  frivolous 
writ  of  error.®^  Ordinarily  such  damages  will  not  be 
allowed  unless  applied  for.®® 

Where  the  appeal  is  frivolous  and  vexatious,  the  su- 
preme court,  on  affirmance,  may  award  compensatory 
damages ; ''"  as  where  the  appeal  is  groundless  or  oppres- 

64  Waterman  v.  Tows,  7  Mich.  78.  VOWagar    v.    Bowley,    109  Mich. 

65  O'Connor  v.  Parker,  23  Mich.  388;  Snow  v.  McCraeken,  107  Mich. 
22;  Schememann  v.  Rothfuss,  46  49;  Fisher  v.  Dowling,  66  Mich. 
Mich.  453;  Foran  v.  Allen,  67  Mich.  370;  Maywood  v.  Logan,  78  Mich. 
188;      Leonard     v.     Armstrong,     73  135. 

Mich.  577;  Buck  v.  Haynes'  Estate,  Costs  may  be  allowed  against  an 

75  Mich.  397.  administrator      individually      where 

66  Meyerfield  v.  Stettheimer,  20  he  has  vexatiously  appealed.  Showers 
Mich.  418;   Toles  v.  Meddaugh,  106  v.   Morrill,  41   Mich.   700. 

Mich.  398;   Erickson  v.  Drazkowski,  Where    defendant    in    the    lower 

94  Mich.  551 ;   Edison  v.  La  Londe,  court  is  erroneously  denied  his  full 

88    Mich.   162;    O 'Hara   v.    Mernan,  costs,   but   fails   to   appeal,   and   the 

79   Mich.    222;    Maywood   v.   Logan,  case    is    affirmed    on    complainant's 

78  Mich.  135.  appeal,  which  is  without  merit,  the 

67  Storey  v.  Bird,  8  Mich.  316.  payment   of   the   costs   may   be   im- 

68  New  Home  Sewing  Mach.  Co.  posed  against  him  as  damages  for 
V.  Bothane,  70  Mich.  443.  the   vexation.     Ooodenow  v.   Curtis, 

69  Underhill    v.    Muskegon    Boom-  33  Mich.  505. 
ing  Co.,  45  Mich.  496. 


654  Error,  Writ  of  §  64 

sive  or  tliore  is  clear  proof  of  iiitontional  wrong  on  the 
part  of  the  party  taking  it.'^  Damages  as  for  vexatious 
appeal  may  be  awarded  where  the  amount  involved  is 
small  and  the  only  substantial  points  of  law  in  question 
have  already  been  disposed  of  on  a  previous  hearing.''^^ 
However,  a  i)arty  is  not  ehargeal)le  with  costs  as  for  a 
vexations  a])i)eal,  where  the  (piestions  raised  are  not  so 
easy  of  solution  as  to  make  it  apparent  that  the  apjiejd 
was  taken  for  delay,'^^  since  it  must  clearly  appear  that 
tlie  appeal  was  taken  merely  for  delay.''* 

The  amount  of  additional  costs,  which  may  be  im- 
posed, is  discretionary,  and  such  sums  as  twenty  dol- 
lars,'^ twenty-five  dollars,'^  fifty  dollars,''  and  one  hun- 
dred dollars,'*  have  been  allowed;  and  in  one  case  it  was 
held  that  even  as  high  a  sum  as  five  hundred  dollars  was 
properly  imposed  for  vexatious  appeals.'^ 

§  65.  On  dismissal. 

If  a  writ  of  error  is  discontinued  or  quashed,  or  the 
appellant  in  error  is  nonsuited,  ai)pellee  is  entitled  to 
recover  costs.*"  But  it  is  proper  to  refuse  to  allow  costs 
on  dismissal,  where  no  motion  was  made  for  dismissal;  *^ 
or  where  the  writ  was  dismissed  for  defects  in  procedure 
arising  from  a  stipulation  of  the  parties.*^  But  where 
there  was  ground  for  dismissing  a  writ  of  error  when  the 
motion  was  noticed,  but  it  was  denied  because  of  the  sub- 

71  Hopkins  Mfg.  Co.  v.  Ruggles,  78  In  re  Marx's  Estate,  201  Mich. 
.51   Mich.  474.  504. 

72  Singer  Mfg.  Co.  v.  Benjamin,  79  Heath  v.  Waters,  40  Mich.  457. 
59  Mich.  592.  80  Jud.    Act,   eh.   47,    §  21 ;    Comp. 

73  In    re    George    T.    Smith    Mi.l-  Laws  1915,  §1.3702. 

(llings  Purifier  Co.,  86  Mich.   149.  81  Ideal     Furnace     Co.     v.     Inter- 

74  Schmemann  v.  Rothfuss,  4fi  national  Molders'  Union,  204  Mich. 
Mich.  453.  311;   Maxfield  v.  Freeman,  39  Mich. 

75Foran  v.   Allen,  67  Mich.  188.         64;    First   Nat.  Bank   v.  Mellen,   45 

76  Carver    v.    Detroit   &    S.    Plank       Mich.  413. 

Road  Co.,  126  Mich.  458.  82  Harris   v.    Sweetland,   48   Mich. 

77  Port   Huron   &  N.   W.   Ry.    Co.       110. 
V.   Callanan,   61   Mich.   22. 


§  67  Error,  Writ  of  655 

sequent  acts  of  a[)pellee,  costs  of  the  motion  should  be 
allowed  the  moving  part}^^^ 

§  66.  Costs  on  rehearing-,  motion  costs,  items  of 

costs,  and  taxation  of  costs. 

All  these  matters  are  treated  of  under  tlie  head  of 
'* Supreme  Court"  for  the  reason  that  the  governing 
rules  seem  to  apply  to  all  proceedings  in  the  supreme 
court  except  where  it  is  otherwise  specially  provided. 

§  67.  Procedure  after  affirmance  or  reversal. 

When  the  supreme  court  has  rendered  its  decision 
upon  a  judgment  of  the  lower  court,  it  is  certified  to  the 
lower  court  by  remittitur  under  the  hand  of  the  clerk  and 
the  seal  of  the  court.  In  practice  this  is  forwarded  by 
the  clerk  directly  to  the  clerk  of  the  lower  court,  without 
request  of  the  prevailing  party.  If  the  judgment  is 
affirmed,  the  filing  of  the  remittitur  operates  to  terminate 
the  stay  of  proceedings,  if  any.  If  the  judgment  is  re- 
versed and  a  new  trial  granted,  filing  of  the  remittitur 
enables  either  party  to  notice  the  cause  for  trial,  a  step 
which  cannot  be  effectually  taken  until  a  remittitur  is 
filed.®*  Reversal  of  a  judgment  ordering  a  new  trial 
operates  to  vacate  the  judgment,  and  a  new  trial  is  neces- 
sary before  any  judgment  can  be  enforced  against  a  joint 
defendant  who  did  not  join  in  the  writ  of  error.®^  De- 
crees of  the  supreme  court  are  final  and  complete  when 
entered  on  the  journals.®^  After  reversal  and  a  new 
trial  ordered,  but  before  the  remittitur  has  issued,  the 
supreme  court  has  no  jurisdiction  in  ejectment  to  grant 
an  order  staying  waste  or  to  award  costs  to  the  |)arty 
resisting  the  motion  therefor.®^    So  where  execution  has 

88  Woodmansie      v.      Hollon,      16  86Eyerson    v.    Eldred,    18    Mich. 

Mich.   378.  490. 

84  Steven's  Mich.  Pr.   §521.  87  Crane   v.   Rceder,  23   Mich.   92. 

85  Hall  V.  Calhoun  Circuit  Judge, 
123  Mich.  555. 


656  Error,  Writ  of  §67 

been  issued  on  a  judgment  of  the  supreme  court,  it  is  too 
late  to  apply  to  the  supreme  court  to  change  the  form  of 
the  judgment  entry. *^  And  a  motion  in  the  supreme 
court  for  a  writ  of  restitution,  based  on  the  final  decree 
thereof,  will  be  denied  where  the  record  of  the  case  has 
been  returned  to  the  lower  court,  since  the  power  rests 
in  the  lower  court.^®  A  remittitur  issued  upon  the  affirm- 
ance of  a  judgment  restores  to  the  trial  court  its  jurisdic- 
tion of  the  cause,  to  make  such  order  as  may  seem 
proper.^"  Where  a  cause  is  remanded,  after  judgment, 
without  directions,  th'e  trial  court  can  exercise  such 
powers  in  respect  to  the  execution  of  the  judgment  as  it 
would  have  if  judgment  had  been  entered  by  itself,  and 
it  has  no  further  discretion.^^  The  decision  of  the  su- 
preme court  is  binding  on  the  lower  court  on  a  second 
trial,^'^  and  must  be  followed  by  the  trial  court.^' 

The  effect  of  a  reversal  by  the  supreme  court  where  a 
new  trial  is  ordered  is  to  send  the  case  back  to  the  court 
below  to  be  tried  in  the  usual  and  customary  manner  by 
the  court,  with  or  without  a  jury,  as  may  thereafter  be 
determined.  The  case,  where  tried  before  a  referee  the 
first  time,  does  not  again  go  before  him.  His  powers  and 
duties  in  the  premises  cease  when  he  makes  his  report 
and  a  judgment  is  entered  thereon.  The  parties  may,  if 
they  desire,  have  the  case  again  referred  to  the  same 
referee,  but  either  party  has  a  right  to  demand  that  the 
issue  be  tried  by  a  jury.  Even  a  previous  reference  and 
trial  before  a  referee  under  a  stipulation  will  not  cut  off 
this  right.®*    The  fact  that  a  cause  on  a  previous  trial 

88  Stoll  V.  Padley,  100  Mich.  404.      Mynning  v.  Detroit,  L.  &  N.  R.  Co., 

89  Crawford  v.  Hoeft,  58  Mich.  1.      67    Mich.    677;    Wheeler   v.    Meyer, 
SOEeynolds    v.    Newaygo    Circuit       301  Mich.  465. 

Judge,  109  Mich.  403.  93  Wheeler    v.    Meyer,    101    Mich. 

91  People       V.      Ingham       Circuit       465. 

Judge,  37  Mich.  377.  94  Hopkins   v.    Sanford,   41    Mich. 

92  O  'Neil   V.    Northern   Assurance      243. 
Co.     of    London,    155     Mich.    564; 


Escape  657 

was  submitted  on  one  of  two  theories  does  not  preclude 
a  recovery  on  a  subsequent  trial  on  the  other  theory.®' 
Where  a  judgment  is  entered  against  joint  defendants 
and  one  severs  to  bring  a  writ  of  error,  and  on  a  second 
trial  plaintiff  again  recovers  judgment  with  no  discon- 
tinuance as  to  the  defendant  not  objecting,  the  new  judg- 
ment must  be  entered  against  both.®^ 

ESCAPE 

The  liability  of  sheriffs  for  the  escape  of  prisoners 
committed  to  jail  on  civil  process  is  expressly  regulated 
by  the  Judicature  Act  which  substantially  re-enacts  the 
statutes  theretofore  existing.^  The  action  against  the 
sheriff  may  be  in  form  either  assumpsit  or  trespass  on 
the  case.^  So  an  action  lies  on  the  sheriff's  bond,  in  a 
proper  case,  where  there  has  been  an  escape.*  Jail  liber- 
ties are  referred  to  hereafter.* 

Form  of  Count  in  Case  Against  a  Sheriff  for  an  Escape  on  a  Capias  ad 

Respondendum 

The  plaintiff  says: 

1.  That,  heretofore,  to  wit,  on ,  at ,  one  C.  D.  was  indebted 

to  the  said  plaintiff,  to  wit,  in  the  sum  of    dollars,  upon  certain 

causes  of  action  which  the  said  plaintiff  then  and  there  had  against  the 
said  C.  D.  2.  That  the  said  plaintiff  for  the  recovery  of  the  said  indebt- 
edness, afterwards,  to  wit,  on  the  day  and  year  last  aforesaid,  sued  out  of 

the  circuit  court  for  the  county  of a  writ  of  capias  ad  respondendum, 

directed  to  the  sheriff  of  the  county  of   ,  whereby  the  said  plaintiff 

was  commanded,  in  the  name  of  the  people  of  the  state  of  Michigan,  that 
he  should  take  the  said  C.  D.,  if  he  should  be  found  in  the  bailiwick  of  the 
said  sheriff,  and  keep  him  in  his  custody,  until  he  should  be  discharged  ac- 
cording to  law,  which  said  writ  was  made  returnable  on  the  day  of 

95Cooley    v.    Kinney,    119    Mich.  Uud.  Act,  ch.  25,  §§  43-46;  Comp. 

377.  Laws  1915,  §§  13021-13024. 

But    plaintiff    cannot    adopt    an  2Jud.    Act,    eh.    25,    §§44,    45; 

entirely  new  and  inconsistent  theory.  Conip.  Laws   1915,   §§  13022,  13023. 

Connor  v.  Lake  Shore,  etc.,  K.  Co.,  3  People    v.    Gebhardt,    154    Mich. 

168  Mich.   29.  504. 

96  McPherson  v.  Bristol,  122  Mich.  4  See  Jail   Liberties. 
354. 

1  Abbott— 42 


658  Escape 

,  A.  D 3.  That  afterwards  to  wit,  on ,  at ,  in 

the  county  aforesaid,  the  said  writ  was  delivered  to  the  said  S.  T.,  who 
then,  until  and  after  the  return  of  said  writ,  was  sheriff  of  the  county  afore- 
said, to  be  executed  according  to  law.  4.  That,  by  virtue  of  said  writ,  the 
said  S.  T.,  as  such  sheriff,  afterwards,  and  before  the  return  of  the  said 

writ,  to  wit,  on ,  and  within  his  bailiwick,  to  wit,  at ,  took  the 

said  C.  D.  by  his  body  and  kept  him  in  his  custody  until  the  said  de- 
fendant committed  the  grievance  hereinafter  mentioned.     5.  That  the  said 

defendant    afterwards,   to  wit,   on    ,   at    ,  without   leave  and 

against  the  will  of  the  said  plaintiff,  permitted  the  said  C.  D.  to  escape 
and  go  at  large,  and  the  said  C.  D.  did  then  and  there  escape  and  go  at  large 
whithersoever  he  would,  out  of  the  custody  of  the  said  defendant.  6.  That 
the  said  indebtedness  is  wholly  unpaid  and  unsatisfied  to  the  said  plaintiff. 
7.  That  the  said  C.  D.  did  not  appear  in  the  said  court  according  to  the  ex- 
igency of  said  writ.  8.  That  thereby  the  said  plaintiff  has  been,  and  is, 
delayed  and  hindered  in  the  recovery  of  his  said  indebtedness  and  is  alto- 
gether likely  to  lose  the  same.  9.  That  thereby  also  the  said  plaintiff  has 
lost  the  means  of  recovering  his  costs  and  charges  by  him  expended  in  and 
about  his  suit,  so  commenced  against  the  said  C.  D.  as  aforesaid,  to  wit, 
dollars. 

ESTATES 

See  Executions  (title  of  purchaser). 

ESTATES   OF   DECEDENTS 

See  Probate  Courts;  Limitation  of  Actions;  Executions;  Executors 
AND  Administrators. 

ESTOPPEL 

Estoppel  is  an  affirmative  defense  notice  of  which  must 
be  given  under  a  plea  of  the  general  issue  as  stated  in 
the  article  on  Pleading.  A  form  apjjroved  by  the  state 
bar  association  is  as  follows:  ''The  defendant  says  that 
the  plaintiff'  is  estopped  to  say  that  the  goods  mentioned 
in  the  declaration  are  the  property  of  the  plaintiff,  be- 
cause the  goods  were  purchased  by  the  defendant  from 
one  E,  F.  with  the  knowledge  of  the  plaintiff  who  did 
not  make  any  claim  to  the  ownership  of  said  goods  and, 
by  his  silence,  permitted  and  induced  the  plaintiff  then 
and  there  to  purchase  the  same." 


Evidence  659 

Another  Form 

To  the  said  Plaintiff: 

You  will  please  to  take  notice  that,  on  the  trial  of  this  cause,  the  said 
defendant  will  give  in  evidence  and  insist,  in  his  defense:  1.  That  the  said 
plaintiff  ought  not  to  maintain  his  said  action,  because  (Here  state  the  mat- 
ter in  estoppel). 

K.  L., 
Attorney  for  Defendant. 

Tlioro  may  he  an  estoppel  to  allei^'e  error  in  the  su- 
preme court  (see  Error,  Writ  of),  or  to  plead  the  statute 
of  limitations  (see  Limitation  of  Actions)  or  to  question 
an  execution  sale  (see  Executions). 

EVICTION 

See  Executions;  Ejectjient. 

EVIDENCE 

§  '1.  Scope  of  article. 

§    2.  Inspection  of  persons  and  things  in  court. 

§    3.  View. 

§    4.  Comparison  of  handwriting. 

^    5.  Proceedings  to  obtain  admission  of  genuineness  of  papers. 

§    6.  Notice  to  produce  papers. 

§    7.  When  notice  to  produce  not  necessary. 

§    8.  Effect  of  refusal  to  produce. 

§    9.  Form  and  requisites  of  notice  to  produce. 

§  10.  —When  and  where  notice  served. 

§11.  When  production  of  papers  may  be  called  for. 

§  12.  Effect  of  production  of  papers  pursuant  to  notice. 

§  13.  Classification  of  writings  with  reference  to  rule  excluding  substitution 

of  oral  for  written  evidence. 

§14.  Writings  which  law  requires. 

§  15.  Writings  in  which  parties  have  embodied  their  contract 

§  16.  Writings  existence  of  which  is  in  question. 

§  17.  Oral  evidence  of  facts  evidenced  by  other  writings. 

§18.  Proof  of  laws  and  resolutions  of  state. 

§  19.  Proof  of  written  laws  and  resolutions  of  other  states  and  countries. 

§  20.  Proof  of  unwritten  or  common  law  of  other  states  and  countries. 

§  21.  Proof  of  ordinances,  etc.,  of  municipalities. 

§  22.  Public  books  and  records  as  evidence. 

§  23.  Proof  of  records  and  proceedings  of  state  courts. 

§  24.  Proof    of    records    and    proceedings    of    courts    of    other    states    and 

countries. 


660  Evidence  §  1 

§  25.  Proof  of  proceedings  of  justices  of  the  peace. 

§  26.  Of  other  states. 

§  27.  Certificate  of  sale  on  execution. 

§  28.  Proof  of  publication. 

§  29.  Conveyances  and  instruments  entitled  to  be  recorded. 

§  30.  When  testimony  of  subscribing  witness  is  required. 

§  31,  Wills  as  evidence. 

§  32,  Books  of  account  as  evidence. 

§  33.  Statutory  extension  of  principle. 

§  34.  As  dependent  on  aflSdavit, 

§  35.  Affidavit  of  copartnership  or  association. 

Cross-References:  Witnesses  (competency  and  examination);  Trial 
(objections  to  evidence,  offers  of  proof,  order  of  proof,  etc.) ;  Depositions; 
Subpoenas;   Exceptions;   Bill  of  Exceptions;   Error,  Writ  of. 

§  1.  Scope  of  article. 

The  admissibility  of  evidence  is  not  within  the  scope 
of  a  practice  work.  However,  a  few  references  to  the 
common  law  rules  governing  parol  evidence,  etc.,  and  to 
the  statutes  of  this  state  fixing  the  mode  of  proving  cer- 
tain things,  is  deemed  not  out  of  place. 

§  2.  Inspection  of  persons  and  things  in  court. 

Evidence  of  this  sort  is  commonly  employed  on  the 
trial  of  actions  for  personal  injuries,  where  there  is  a 
question  as  to  the  character  and  extent  of  the  injuiy.  In 
these  cases,  it  is  not  error  to  allow  the  injured  person  to 
exhibit  the  injured  portion  of  his  body  to  the  jury,  un- 
less this  would  involve  an  indecent  exposure  of  the  per- 
son, which  ought  not  to  be  allowed  in  a  judicial  proceed- 
ing.^ Upon  the  question  whether  the  court  has  power  to 
compel  the  injured  person  to  submit  to  a  physical  ex- 
amination, the  authorities  are  widely  divergent,  but  the 
better  rule  would  seem  to  be  that  courts  have  such  gen- 
eral power,  but  must  exercise  it  according  to  a  sound 

1  Barfoot  v.  White  star  Line,  170  igan    United    Rys.,    154   Mich.    233; 

Mich.  349;  Benson  v.  Raymond,  142  Logan  v.   Agricultural   Society,   156 

Mich.  357;    Carstens  v.   Hanselman,  Mich.   537. 
61   Mich.   426;    Fillingham  v.   Mich- 


§  2  Evidence  661 

discretion,  upon  such  terms  and  under  such  proper  safe- 
guards as  the  circumstances  of  the  particular  case  sug- 
gest as  effectual  to  preserve  the  respective  rights  of  all 
the  parties  concerned.  Thus,  it  is  held  that  the  court 
may  require  a  plaintiff  suing  for  an  injury  to  her  arm  to 
allow  a  physician  to  examine  the  arm  in  the  presence  of 
the  jury.^  But  where  the  examination  of  a  part  of  the 
human  body  would  shock  the  sense  of  propriety,  if  not  of 
decency,  the  court  should  require  the  examination  to  be 
made  by  a  competent  person  privately  and  apart  from 
the  jury,  and  then  receive  his  testimony  as  to  the  condi- 
tions revealed  to  him.^  But  even  such  private  examina- 
tion is  properly  refused  where  the  making  of  it  would 
require  the  use  of  anaesthetics.* 

The  court  will  allow  exhibition  of  parts  of  the  body  to 
the  jury  when  offered  by  the  injured  person  in  many  cases 
where  it  would  neither  require  such  exhibition  nor  order 
the  person  to  submit  to  a  private  personal  examination, 
the  test  being,  as  indicated,  whether  the  exhibition  would 
be  indecent.  So,  where  the  question  was  whether  the 
plaintiff's  broken  leg  had  shriveled,  he  was  allowed  to  ex- 
pose it  to  the  jury  as  evidence  of  its  condition.'  And 
where  the  plaintiff  claimed  that  an  injury  resulted  in  a 
swelling  of  the  ankle  and  a  cracking  of  the  skin  of  the 
foot  and  that  such  condition  continued  up  to  the  time  of 
the  trial,  she  was  permitted  to  exhibit  the  parts  to  the 
jury  that  they  might  see  their  condition.® 

And,  as  parts  of  the  human  body  may,  within  proper 

2  Graves  v.  City  of  Battle  Creek,  B  Langworthy  v.  Green  Tp.,  95 
95   Mich.   266.      Compare   McKnight       Mich.  93. 

V.  Detroit  &  M.   R.  Co.,  135  Mich.  But    where    trial    was    more    than 

307,    where   refusal   to   compel    wit-  three  years  after  the  accident,  exhi- 

ness  not  a  party  to  exhibit  his  leg  bition    of    limb    was    held    improper 

was  held   proper.  in  absence  of  showing  that  it  had 

3  Brown  v.  Swineford,  44  Wis.  not  changed  for  the  worse.  French 
282.  V.   Wilkinson,   93   Mich.   322. 

4  Strudgeon  v.  Village  of  Sand  6  Edwards  v.  Village  of  Three 
Beach,  107  Mich.  496.  Rivers,  96  Mich.  625. 


662  Evidence  §  2 

limits,  be  shown  to  the  jury,  so  also  may  other  things, 
whether  animate  or  inanimate.  Thus,  planks,  stringers 
and  other  material  taken  from  sidewalks,  bridges  and 
other  structures,  whose  alleged  defective  condition  is 
claimed  to  have  caused  the  injurj^  are,  when  fully  identi- 
fied, properly  exhibited  to  the  Jury."'' 

Sometimes  experiments,  1)oth  mechanical  and  chemi- 
cal, are  alhnved  to  be  perfor-med  before  the  jury,  })ut 
always  under  such  restrictions  and  requirements  as  to 
exclude  reasonable  doubt  of  imposition.®  But  where  the 
genuineness  of  a  signature  is  in  issue,  the  party  cannot 
be  required  to  write  his  name  in  court  foi*  purposes  of 
com])arison.^ 

§3.  View. 

In  addition  to  the  testimony  of  witnesses  and  the  evi- 
dence afforded  by  w^ritings,  anotlier  class  of  the  instru- 
ments of  evidence  consists  of  the  ins]iection  or  view  of 
objects,  either  in  court  or  out  of  court,  and  has  been 
aptly  termed  "natural  evidence."  An  inspection  has 
been  said  to  be  a  substitution  of  the  eye  for  the  ear,  and 
the  same  is  true  of  a  view.  The  term,  "inspection,"  is 
usually  applied  to  the  critical  observation  of  persons  or 
things  in  court,  while  the  word,  "view,"  as  used  in  this 
connection,  ordinarily  signifies  an  examination  of  places 
or  objects  out  of  court.  The  ancient  practice  of  trial  by 
inspection,  whereby  the  judges  of  the  court,  by  an  actual 
examination  of  the  thing  involved  in  the  issue,  decided 

7Lombar     v.     Village     of     East  8  People   v.   Mead,   50  Mich.   228; 

Tawas,  86  Mich.  14;  McGrail  v.  City  Ppojile  v.  Slack,  00  Mich.  448;  Kin- 

of  Kalamazoo,  94  Mich.  52;  Hudson  iiey     v.     Folkorts,     S4     Mich.     616; 

V.    Roos,    76    Mich.    17.3;    Stevenson  National   Cash   Register  Co.   v.   Blu- 

V.    Michigan    Log-Towing    Co.,    lO"?  nienthal,    85    Mich.    464;    People    v. 

Mich.  412;   Warren  v.  City  Electric  Deitz,  86  Mich.  419;   Ulrich  v.  Peo- 

R.   Co.,   141   Mich.   298;    Jaddatz   v.  j.le,   :^9   Mich.   245. 

Grace  Harbor  Lumber  Co.,  194  Mich.  9  Fir.st   Nat.    Bank   v.   Robert,   41 

27.3;     Williams    v.    City    of    Grand  Mich.   709. 
Rapids,  5.3   Mich.  271. 


§  3  Evidence  663 

the  dispute  upon  the  testimony  of  their  own  senses,  is 
now  obsolete,  but  the  examination  of  persons,  phices  and 
objects  is  resorted  to  in  modem  practice,  both  in  crim- 
inal and  in  civil  eases,  not  as  a  mode  of  trial  as  formerly, 
but  as  one  of  the  most  satisfactory  means  whereby  the 
truth  of  an  issue  may  be  determined. 

On  the  same  principle  on  which  inspection  is  permitted 
of  persons  and  things  in  court,  the  jury  may  be  allowed 
to  have  a  view  of  places  and  objects  out  of  court.  Testi- 
mony of  localities  is  better  understood  by  actual  view 
and  observation  than  by  description,  and  may  be  resorted 
to  even  though  changes  have  occurred  or  been  made  after 
the  event  in  issue,  for  the  changes  can  be  as  well  ex- 
plained in  one  place  as  in  the  other.^°  The  power  of  the 
court  to  order  a  view  existed  at  the  common  law,  but  in 
Michigan  it  has  been  provided  by  statute  that,  when  any 
Court  of  record  in  which  an  issue  of  fact  is  tried  by  a 
jury  deems  it  necessary  that  the  juiy  view  the  place  or 
premises  in  question,  or  any  property  or  thing  relating 
to  the  issue  between  the  parties,  such  court  may,  on  the 
application  of  either  party  and  the  advancement  of  a 
sufficient  sum-  to  pay  the  expenses  of  the  jury  and  the 
officers  attending  them  in  taking  the  view,  order  such 
view  to  be  had  and  direct  the  manner  of  elTecting  it." 
The  action  of  the  court  in  permitting  or  refusing  a  view 
in  the  cases  contemplated  by  the  statute  will  not  be 
ground  for  reversal  on  error,  unless  its  discretion  has 
been  manifestly  abused.^^ 

10  Bedell  v.  Bcrkoy,  76  Mich.  435;  Act,  cli.  18,  §  51;  Conip.  Laws  1915, 
People   V.   Auerbach,   176  Mich.   23;       §12623. 

People  V.  Winney,  196  Mich.  347.  12  Dupuis  v.  Saginaw  Valley  Trac- 

11  Jud.  Act,  ch.  18,  §  50 ;  Comp.  tion  Co.,  146  Mich.  151 ;  Stewart 
Laws  1915,  §  12622.  The  expenses  v.  Cincinnati,  etc.,  R.  Co.,  89  Mich, 
advanced  by  any  party  for  the  tak-  315;  Richmond  v.  Atkinson,  58 
ing  of  a  view  may  be  taxed  like  Mich.  413;  Dupuis  v.  Saginaw  Val- 
other  disbursements  in  the  suit,  if  ley  Traction  Co.,  146  Mich.  151; 
the  party  advancing  them  prevails  Leidlein  v.  Meyer,  95  Mich.  586; 
and  becomes  entitled  to  costs.     Jud.  Leonard    v.    Armstrong,    73    Mich. 


664  Evidence  §  4 

§  4.  Comparison  of  handwriting. 

Formerly  the  rule  was  that  the  use  of  papers  for  the 
purpose  of  comparison  of  handwriting  is  confined  to  such 
as  belong  in  the  cause ;  "  that  where  a  paper  is  a  part  of 
the  files  in  the  case,  it  may  be  used  as  a  standard  of  com- 
parison,^* but  that  comparison  could  not  be  made  with 
writings  admitted  in  evidence  solely  as  a  basis  for  com- 
parison," and  that  the  signatures  to  unidentified  docu- 
ments not  in  evidence  were  properly  rejected  when  of- 
fered in  evidence  for  the  purpose  of  comparison.^^  But 
the  Judicature  Act  provides  that  any  specimen  of  hand- 
writing or  signature  of  any  person  admitted  or  proved  to 
the  satisfaction  of  the  jury  to  be  genuine  may  be  ad- 
mitted for  the  purpose  of  comparison,  although  not  con- 
nected with  the  case  or  otherwise  admissible,  provided 
that  where  not  connected  with  the  case  or  not  admissible 
for  any  other  purpose,  it  was  made  before  the  contro- 
versy concerning  which  the  suit  or  proceeding  was 
brought  arose. •^'^  Where  a  witness  saw  the  maker  sign 
the  note  in  the  possession  of  the  witness,  he  may  compare 
the  signature  with  the  note  in  suit  and  then  give  his 
opinion.^*  But  a  party  cannot,  on  cross-examination,  be 

577;    Mulliken   v.    City   of   Corunna,  cinnati,  etc.,  R.  Co.,  89  Mich.  315. 

110   Mich.   212;    Michigan   Air  Line  Effect    of    attorney     going    with 

R.  V.  Barnes,  44  Mich.  222;   Toledo,  jury,  see  Leidlein  v.  Myer,  95  Mich, 

etc.,    R.    Co.    V.    Dunlap,    47    Mich.  586. 

456;    Withey  v.  Pere  Marquette  R.  13  In   re   Foster's  Will,   34  Mich. 

Co.,    141    Mich.    412;    Stevenson    v.  21 ;  Vinton  v.  Peck,  14  Mich.  287. 

Michigan  Log  Towing  Co.,  103  Mich.  14  Brown  v.  Evans,  149  Mich.  429 ; 

412;  Jaddatz  v.  Grace  Harbor  Lum-  Vinton  v.  Peek,  14  Mich.  287. 

ber  Co.,  194  Mich.  273.  15  Weidman   v.   Symes,   116   Mich. 

Rule  applied  where  court  refused  619. 

to  permit  jury  to  view  automobile.  16  Taylor  v.   Taylor's  Estate,  138 

Jaddatz    v.    Grace    Harbor    Lumber  Mich.  658. 

Co.,  194  Mich.  273.  17  Jud.   Act,   eh.   17,   §51;    Comp. 

Motion  for  view  of  place  of  acci-  Laws  1915,  §  12539. 

dent   made   three   years   afterwards,  18  Worth   v.   McConnell,  42   Mich, 

where   conditions  had  changed,  held  473. 
properly  refused  in  Stewart  v.  Cin- 


§  6  Evidence  665 

required  to  write  his  name  in  court  for  purposes  of  com- 
parison by  the  jury,  nor  to  introduce  signatures  made  by 
him  before  the  instrument  in  suit.^® 

§  5.  Proceeding's  to  obtain  admission  of  genuineness  of 
papers. 

Either  party  to  a  suit  may  exhibit  to  the  other  or  to  his 
attorney,  at  any  time  before  the  trial,  any  paper  material 
to  the  action  and  request  an  admission  in  writing  of  its 
genuineness.  If  the  adverse  party  or  his  attorney  fail  to 
give  the  admission  within  four  days  after  such  request 
and  the  delivery  to  him  of  a  copy  of  the  paper,  if  such 
copy  be  required,  and  the  party  exhibiting  the  paper  is 
afterwards  put  to  expense  in  order  to  prove  its  genuine- 
ness and  it  is  finally  proved  or  admitted  on  the  trial, 
such  expense,  to  be  ascertained  and  summarily  taxed  at 
the  trial,  must  be  paid  by  the  party  who  refused  the  ad- 
mission, unless  it  is  made  to  appear  to  the  satisfaction 
of  the  court  that  there  were  good  reasons  for  the  refusal. 
An  attachment  or  execution  may  be  granted  to  enforce 
the  payment  of  such  expense.*^® 

§  6.  Notice  to  produce  papers. 

The  familiar  rule  which  requires  the  best  evidence  of 
which  the  case  in  its  nature  is  susceptible  and  excludes 
secondary  evidence  until  a  proper  effort  has  been  made 
to  secure  the  primary  evidence  is  elementary.*^  The 
cases  which  most  frequently  call  for  the  application  of 

19  First  Nat.  Bank  v.  Robert,  41  for  the  purpose  of  obtaining  an 
Mich.  709.  admission     of     its     genuineness,    in 

20  Cir.  Ct.  Rule  35.  order  to  save  the  necessity  of  prov- 

ing the  same  upon  the  trial  of  this 
Fonn  of  Admission  of  Genuineness  t    i     i     ^i         i     *  4.u  *.  i.u 

cause,  I   do  hereby  admit  that  the 

(Title  of  court  and  cause.)  game  is  genuine. 

The      annexed      (or     "within")  E.   F.,  Attorney,  &c. 

paper    writing,    having    been    exhib-  Dated,  &c. 

ited  to  me  by  A.  B.,  attorney  for  21  Ferguson     v.     Hemingway,     38 

the     plaintiff      (or     "defendant")  Mich.  159. 


666  Evidence  §  6 

this  rule  are  those  which  rehite  to  the  substitution  of  oral 
for  written  evidence,  which  may  be  arranged  into  three 
classes,  including*,  in  the  first  class,  those  instruments 
which  the  law  requires  should  be  in  writing;  in  the  sec- 
ond, those  contracts  wliicli  the  parties  have  put  in  writ- 
ing; and  in  the  third,  all  othei'  writings  the  existence  of 
wliich  is  disputed  and  which  are  material  to  the  issue. ^'^ 
Tlie  fact  tliat  tlie  primary  and  best  evidence  is  not  in  the 
possession  or  control  of  the  party  who  desires  to  use  it, 
but  in  the  hands  of  the  adverse  party,  does  not  of  itself 
warrant  the  introduction  of  secondary  evidence  in  the 
place  of  it.  In  such  case,  it  is  required  that  notice  be 
given  to  the  adverse  party  or  his  attorney  to  produce  the 
primary  evidence  for  use  on  the  trial,  not  that,  on  ]n*oof 
of  such  notice,  the  adverse  party  may  be  compelled  to 
give  evidence  against  himself,  but  to  lay  a  foundation 
for  the  introduction  of  secondary  evidence  of  the  con- 
tents of  the  document  or  writing,  by  showing  that  the 
party  offering  the  secondary  evidence  has  done  all  in  his 
power  to  produce  the  original. ^^ 

§  7.  When  notice  to  produce  not  necessary. 

There  are  some  cases  in  which,  although  the  adverse 
party  is  in  possession  of  tlie  original  evidence,  yet  no 
notice  to  produce  it  is  necessary.  Thus,  where  the  in- 
strument in  the  hands  of  the  adverse  party  and  that 
which  the  other  party  seeks  to  introduce  are  duplicate 
originals.^*  So,  where  the  instrument  to  be  proved  is 
itself  a  notice,  such  as  a  notice  to  quit  or  a  notice  of  the 
dishonor  of  a  bill  of  exchango,^^  or  where,  from  the  na- 

22  1  Grpenl.  Ev,  see.  85.  Subpoena    duces   tecum,    see    SUB- 

23  See    Fergiison    v.    Hemingway,      poena s. 

.^.8    Mich.    1.59;    Hood    v.    Olin,    80  24  1    Greenl.  Ev.   see.  561;    Cleve- 

Mich.  296;   Pangborn  v.  Continental  land,  etc.,  R.  Co.  v.  Perkins,  17  Mich. 

Ins.    Co.,   62   Mich.   6:!8;    Thompson  296. 

V.   Richards,    14   Mich.    172;    People  25  Falkner  v.  Beers,  2  Doug.  117; 

V.  O'Neill,  107  Midi.  556.  Mithifjan    Land   &   Iron    Co.   v.   Re- 


§  8  Evidence  667 

ture  of  the  case  aiul  the  state  of  the  pleadings  therein, 
the  adverse  party  has  notice  that  the  other  party  in- 
tends to  charge  him  with  the  possession  of  tlie  instru- 
ment.^^ And  where  the  phiintiiT  sues  upon  a  contract, 
the  defendant  is  entitled,  without  notice,  to  the  produc- 
tion of  all  i)apers  which  form  any  part  of  the  contract,^'' 
and,  in  general,  where  the  form  of  the  action  or  the 
pleadings  give  a  party  notice  to  be  prepared  to  produce 
a  writing,  if  necessary,  no  other  notice  to  produce  is  re- 
quisite.^^ So,  also,  no  notice  is  necessary  where  the  ad- 
verse party  has  fraudulently  obtained  possession  of  the 
instrument,  as  where,  after  the  service  of  a  subpoena 
duces  tecum,  he  received  the  paper  from  the  witness  in 
fraud  of  the  subpoena.^* 

§  8.  Effect  of  refusal  to  produce. 

A  refusal,  after  reasonable  notice,  to  produce  a  docu- 
ment in  the  possession  of  a  party  authorizes  proof  of  its 
contents  by  secondary  evidence ;  ^°  but  it  does  not  dis- 
pense with  such  proof  as  is  obtainable,  and  does  no-t  al- 
low the  tenor  of  the  instrument  to  be  made  out  by  any- 
thing less  than  satisfactory  evidence  of  all  that  is  essen- 
tial. It  does  not  prevent  the  contradiction  of  the  second- 
ary evidence  that  may  be  introduced  or  allow  a  document 
conclusively  to  be  proved  by  anything  that  a  party  may 
see  fit  to  affirm  to  l)e  a  co]:)y  of  it.  Dispensing  with  pri- 
mary evidence  only  changes  tlie  degree  of  evidence  re- 
quired, l)ut  in  no  way  allows  a  case  to  be  made  out  with- 
out proof  or  prevents  counter  proof.^^     The  refused  of  a 

l)iihli('.   Tp.,   ();1    Mich.    628;    Holmes  Kretsingcr,  17  Johns.   (N.  Y.)   29:5; 

Realty  Co.  v.   Silcox,   194  Mich.   59.  Ilotchkiss  v.  Mosher,  48  N.  Y.  478. 

See  also  2  Jones  Evid.  296.  29  1  Greenl.  Ev.  sec.  561;   2  Tidd 

26  Rose  V.   Lewis,  10  Mich.  48.'?.  Pr.   80:?. 

27DcWitt    V.    Prcscott,    51    Midi.  30  Moulton    v.    Mason,    21     Mich. 

298.  o64;   Boglarsky  v.  Singer  Mfg.  Co., 

28  Story   v.   Patten,   .l   Wend.    (N.  65  Mich.  510. 

Y.)   486;   Hammond  v.   Hopping,  1.'5  31  Moulton     v.    Mason      21     Mich 

Wend.     (N.    Y.)     505;     Hardin     v.  364. 


668  Evidence  §  8 

party  to  produce  a  document  when  called  for  under  a 
proper  notice  does  not  operate  to  estop  him  from  after- 
wards introducing  it  in  evidence  as  a  part  of  his  own 
case.^* 

§  9.  Form  and  requisites  of  notice  to  produce. 

The  notice  must  describe  the  writing  demanded  so  as 
to  leave  no  doubt  that  the  party  was  aware  of  the  par- 
ticular instrument  intended  to  be  called  for.  A  notice 
calling  for  all  the  letters  which  passed  between  the  par- 
ties or  their  agents  between  certain  dates,  relating  to  Ihe 
matter  of  a  sale  of  goods,  is  too  indefinite.^'  There  is  no 
authority  for  making  a  drag-net  out  of  such  a  notice. 
Therefore,  for  instance,  a  notice  to  produce  all  letters 
and  papers  from  a  certain  date  covering  a  period  of  five 
years,  without  indicating  them  either  by  date,  subject  or 
reference  to  any  particular  transaction,  is  too  vague.  A 
party  who  is  prepared  with  secondary  evidence  knows 
what  he  wishes  to  prove,  and  lie  should  always  give  such 
notice  as  reasonably  to  enable  the  party  notified  to  under- 
stand what  is  wanted.'* 

Form  of  Notice  to  Produce  a  Paper  at  the  Trial 
(Title  of  court  and  cause.) 
Sir:— 

You  will  please  to  take  notice  that  you  are  required  to  produce,  on  the 
trial  of  this  cause,  a  certain  paper  writing,  bearing  date,  etc.,  (describe  the 
contents  of  the  instrument  in  substance,  as  near  as  may  be),  or,  in  default 
thereof,  parol  evidence  will  be  given  of  its  contents. 

Dated,  etc. 


Yours,  etc., 

J.  K., 
Plaintiff 's   Attorney. 


To  K.  L.,  Defendant 's  Attorney. 


32  Moulton    V.    Mason,    21    Mich.  33  Julius     King     Optical     Co.     v. 

364.     Contra,  Tyng  v.  United  States  Treat,  72  Mich.  599. 

Submarine   &  Torpedo   Boat   Co.,  1  34  Arnstine  Bros.  &  Micr  v.  Treat, 

Hun   (N.  Y.)   161,  60  N.  Y.  644.  71  Mich.  561. 


§  11  Evidence  669 

§  10.  When  and  where  notice  served. 

As  to  the  time  and  place  of  the  service  of  a  notice  to 
produce,  no  precise  rule  can  be  laid  down  except  that  it 
must  be  such  as  to  enable  the  party,  under  the  known  cir- 
cumstances of  the  case,  to  comply  with  the  call.  Gener- 
ally, if  the  party  dwells  in  another  town  than  that  in 
which  the  trial  is  had,  a  service  on  him  at  the  place  where 
the  trial  is  had  or  after  he  has  left  home  to  attend  the 
court  is  not  sufficient;  but,  if  the  party  has  gone  abroad, 
leaving  the  cause  in  the  hands  of  his  attorney,  it  will  be 
presumed  that  he  left  with  the  attorney  all  the  papers 
material  to  the  cause,  and  the  notice  should  therefore  be 
served  on  the  latter.^*  Where  parties  reside  at  a  dis- 
tance from  the  place  of  trial,  a  notice  to  counsel  to  pro- 
duce papers  which  will  only  allow  time  to  communicate 
with  clients  by  telegraph  is  insufficient.^^  The  better 
practice  is  to  give  notice  to  produce  before  entering  upon 
the  trial,  but  the  reasonableness  and  sufficiency  of  the 
notice  depends  upon  the  circumstances  of  each  case  and 
is  a  matter  for  the  court.^''^  A  notice  served  upon  the 
same  day  upon  which  the  instrument  is  to  be  produced 
is  usually  insufficient  to  justify  the  introduction  of 
secondary  evidence,  but  the  circumstances  may  be  such 
as  to  render  such  notice  sufficient.^*  If  a  paper  is  present 
in  court,  notice  to  produce  it  may  be  given  at  the  trial.*' 

§  11.  When  production  of  papers  may  be  called  for. 

The  regular  time  for  calling  for  the  production  of  pa- 
pers is  not  until  the  party  who  requires  them  has  entered 
upon  his  case.    Until  this  time,  the  other  party  may  re- 

35  1  Greenl.  Ev.  see.  562.  88  Pitt  v.  Emmons,  92  Mich.  542 ; 

86  De  Witt  V.  Prescott,  51  Mich.  Mortlock  v.  Williams,  76  Mich.  568. 
298;     Julius    King    Optical    Co.    v.  39  Anon.,    Anth.    N.    P.    (N.    Y.) 

Treat,  72  Mich.   599.  273. 

37  Hansclman  v.  Doyle,  90  Mich. 
142;  Muir  v.  Kalamazoo  Corset  Co., 
155  Mich.  624. 


670  Evidence  §  11 

fuse  to  produce  them,  and  no  cro8S-exaniination  as  to 
their  contents  is  permitted. 

§  12.  Effect  of  production  of  papers  pursuant  to 

notice. 
The  production  of  papers  upon  notice  does  not  make 
them  evidence  in  the  cause,  unless  the  party  calling  for 
them  inspects  them  so  as  to  become  acquainted  with 
their  contents,  in  which  case  the  English  rule  is  that  they 
are  admitted  as  evidence  for  both  parties;  but,  in  the 
American  courts,  the  rule  on  this  subject  is  not  uniform." 
In  ^Michigan,  the  rule  seems  to  be  that  the  mere  produc- 
tion of  papers  pursuant  to  notice  and  the  inspection  of 
them  by  the  party  calling  for  them  do  not  render  them 
evidence  for  either  party,  and  that  they  are  not  evidence 
for  either  party  until  introduced  by  one  or  the  other.*^ 

§  13.  Classification  of  writings  with  reference  to  rule  ex- 
cluding substitution  of  oral  for  written  evidence. 
It  is  a  general  rule  that,  where  written  evidence  of  a 
fact  exists,  oral  evidence  cannot  be  substituted  for  it. 
And  for  the  elucidation  of  this  important  principle, 
which  indeed  is  only  a  particular  application  of  the 
elementary  rule  which  requires  the  best  evidence  of 
which  the  case  in  its  nature  is  susceptible,  written  evi- 
dence may  be  arranged  into  three  classes,  as  follows:  (1) 
Those  instruments  which  the  law  requires  should  be  in 
writing,  (2)  those  contracts  which  the  parties  liave  put 
in  writing,  and  (3)  all  other  writings  the  existence  of 
which  is  disputed  and  which  are  material  to  the  issue.*'* 

§  14.  Writings  which  law  requires. 

In  the  first  place,  oral  evidence  cannot  be  substituted 
for  any  instrument  which  the  law  requires  to  be  in  writ- 

40  Calvert  V.  Flower,  7  Car.  &  P.  «  Hulbcrt  v.  Haniinoiul,  41  Mich. 

386;   Loug  v.   Drew,  114  Mass.   77;  o4.'5 ;    Moulton    v.    Mason,    21    Mich. 

Blake  V.  Euss,  33  Me.  360;   Ellison  364. 

V.  Ciuser,  40  N.  J.  L.  444.  «  i   Greenl.  Ev.  sec.  85. 


§  15  Evidence  671 

ing,  such  as  records,  public  documents,  official  examina- 
tions, deeds  of  conveyance  of  lands,  wills  other  than 
nuncupative,  promises  to  pay  the  debt  of  another  and 
other  writings  mentioned  in  the  statute  of  frauds.*'  The 
fact  that  the  paper  or  entry  belongs  to  a  public  office  does 
not  open  the  door  to  parol  evidence."  Even  the  admis- 
sion of  tUe  fact  by  a  party,  unless  solemnly  made  as  a 
substitute  for  other  proof,  does  not  supersede  direct 
proof  of  matter  of  record  by  which  it  is  sought  to  affect 
him.  But  wliere  the  record  or  document  appointed  by 
law  is  not  part  of  the  fact  to  be  proved,  but  is  merely  a 
collateral  or  subsequent  memorial  of  the  fact,  such  as  the 
registry  of  marriages  and  births  and  the  like,  it  has  not 
this  exclusive  character,  and  any  other  legal  proof  is 
admitted.*' 

§  15. Writing's  in  which  parties  have  embodied  their 

contract. 
In  the  second  place,  oral  proof  cannot  be  substituted 
for  the  written  evidence  of  any  contract  which  the  par- 
ties have  put  in  writing.*^    Here  the  written  instrument 

48  Attorney    General    v.    Rice,    64  v.    Filer,    80    Mkh.    67;    Wade    v. 

Mich.     385;      Auditor     General     v.  Stvachan,    71    Mich,   459;    Walsh   v. 

Menominee  County  Sup'rs,  89  Mich.  Martin,    69    Mich.    29;     Seckler    v. 

552;  Black  v.  Miller,  75  Mich.  323;  Fox,  51  Mich.  92;   Kelsey  v.  Cham- 

Toliver   v.   Brownell,  94   Mich.   577;  beilain,    47    Mich.    241;    Stevens    v. 

Holmes  v.   Cole,  95   Mich.  272;   De-  Oaks,  58  Mich.  343;  Hunt  v.  Thorn, 

rosia  v.  Loree,  158  Mich.  64;  Lynch  2  Mich.  213;  Johnson  v.  Sutherland, 

V.    Kirby,   36   Mich.    238;    Clark    v.  39    Mich.    579;    Finan    v.    Babcock, 

Holmes,    1    Doug.    390;    Cowley    v.  58  Mich.  301;   Coots  v.  Farnsworth, 

Harrisville  Tp.   School  District,  130  61  Mich.  497;   Savereool  v.  Farwell, 

Mich.  634;    Case  v.  Dean,  16  Mich.  17    Mich.    308;    Martin    v.    Hamlin, 

12.  18  Mich.  3.54;   Carney  v.  Hotchkiss, 

44  People  V.  Lambert,  5  Mich.  349.  48    Mich.    276;    Skeels    v.    Starrett, 

45  Black  V.  Miller,  75  Mich.  .S23;  57  Mich.  350;  Cline  v.  Hubbard,  31 
Munro  v.  Meech,  94  Mich.  596.  Midi.    237;    Bearss    v.    Preston,    66 

46  Kulenkamp  v.  Oroff,  71  Midi.  Mich.  11;  Baker  v.  Morehouse,  48 
675;  Nichols  v.  Crandall,  77  Mich.  Mich.  3.34;  Hyde  v.  Tenwinkel,  26 
401;  Hoag  v.  Graves,  81  Mich.  628;  Mich.  93;  Grashaw  v.  Wilson,  123 
Wisconsin    Fire   &    Marine    Ins.    Co.  Mich.    364;    Gregory    v.    Village    of 


672  Evidence  §  15 

may  be  regarded,  in  some  measure,  as  the  ultimate  fact 
to  be  proved,  especially  in  the  case  of  negotiable  securi- 
ties; and,  in  all  cases  of  written  contracts,  the  writing  is 
tacitly  agreed  upon  by  the  parties  themselves  as  the  only 
repository  and  the  appropriate  evidence  of  their  agree- 
ment. The  written  contract  is  not  collateral,  but  is  of 
the  very  essence  of  the  transaction.*' 

The  rule  applies  only  in  suits  between  the  parties  to 
the  instrument  or  their  privies,  and  does  not  affect  third 
persons.  It  is  directed  against  the  admission  of  any 
other  evidence  of  the  language  employed  by  the  parties 
in  making  the  contract  than  that  which  is  furnished  by 
the  instrument  itself.  The  writing,  it  is  true,  may  be 
read  by  the  light  of  the  surrounding  circumstances  in 
order  more  perfectly  to  understand  the  intent  and  mean- 
ing of  the  parties;  but,  as  they  have  constituted  the  writ- 
ing to  be  the  only  outward  and  visible  expression  of  their 
meaning,  no  other  words  are  to  be  added  to  it  or  sub- 
stituted in  its  stead." 

Lake  Linden,  130  Mich.  368;  Sheley  v.  Comstock,  144  Mich.  516. 

V.  Brooks,  114  Mich.  11;  Kalamazoo  47  M,   Eumely   &   Co.   v.   Emmons, 

Novelty    Works    v.    Macalister,    40  85  Mich.  511;  Sheley  v.  Brooks,  114 

Mich.  84;  Wonderly  v.  Holmes  Lum-  Mich.    11;    Phelps    v.    Abbott,    114 

ber  Co.,  56  Mich.  412;  Highstone  v.  Mich.   88. 

Burdette,    61    Mich.    54;     Jones    v.  48  Smith  v.  Van  Blarcom,  45  Mich. 

Phelps,    5    Mich.    218;     Johnson    v.  371;   Hopkins  v.   Sanford,  41  Mich. 

Cranage,    45    Mich.    14;    Eough    v.  243;   Lamb  v.  Story,  45  Mich.  488; 

Breitung,    117   Mich.   48;    Mouat   v.  Fire    Ins.    Ass'n    v.    Wickham,    141 

Montague,   122   Mich.   334;    Cook   v.  U.   S.  564;    Peabody  v.   Bement,   79 

Bell,   18   Mich.   387;    National  Cash  Mich.   47;    Brigham   v.   Martin,   103 

Eegister  Co.  v.  Blumenthal,  85  Mich.  Mich.    150;    Sheley    v.    Brooks,    114 

464;    Hallett   v.   Gordon,   122   Mich.  Mich.  11;  Kleis  v.  Niagara  Ins.  Co., 

567;   Hutchinson  v.  Hutchinson,  102  117  Mich.  469;   Brown  v.  Schiappa- 

Mich.    635;    Citizens'   Sav.   Bank   v.  casse,   115  Mich.  47;    Hutchinson  v. 

Vaughan,  115  Mich.  156;  First  State  Hutchinson,   102  Mich.   635;   Phelps 

Sav.    Bank    v.    Webster,    121    Mich.  v.   Abbott,   114  Mich.   88;    Baird  v. 

149;    Central   Sav.   Bank    v.   O'Con-  Grand  Rapids  School  Furniture  Co., 

nor,  139  Mich.  82;  Michigan  Shingle  98    Mich.    457;    Eaton    v.    Gladwell, 

Co.    V.    London,    etc.,    Ins.    Co.,    91  108   Mich.    678;    Cleveland   Refining 

Mich.  441;  Ferguson  v.  Arthur,  128  Co.    v.    Dunning,    115    Mich.    238; 

Mich.  297;  Detroit  Shipbuilding  Co.  Herpel    v.    Herpel,    162   Mich.    606; 


15 


Evidence 


673 


The  rule,  however,  does  not  exclude  the  admission  of 
parol  evidence  to  show  that  the  instrument  is  altogether 
void  or  that  it  never  had  any  binding  force  or  to  show 
fraud  or  failure  of  consideration ;  *^  nor  does  the  rule 
apply  where  the  original  contract  w^as  verbal  and  entire, 
and  a  part  only  of  it  was  reduced  to  writing;  ^^  nor  where 
a  new  and  distinct  agreement  is  made  upon  a  new"  con- 
sideration, wlietlier  as  a  substitute  for  the  original  agree- 
ment or  in  addition  to  and  beyond  it;  ^^  nor  to  show  that, 
l)y  a  subsequent  agreement,  the  time  or  performance  was 
enlarged  or  the  place  of  performance  changed.*''  So, 
also,  parol  evidence  may  be  admitted  to  explain  an  am- 
biguity in  the  language  of  the  instrument;"  to  explain 


Goebel  v.  Look,  153  Mieh.  204;  In- 
ternational Text-Book  Co.  v.  Mar- 
vin, 166  Mieh.  660;  Superior  Drill 
Co.  V.  Carpenter,  1.50  Mich.  262; 
Hail  V.  Duplex-Power  Co.,  168  Mich. 
6M;  Chicago,  etc.,  R.  Co.  v.  Lane, 
150  Mich.  162;  Sturgis  v.  Detroit, 
etc.,  E.  Co.,  166  Mich.  2.31;  Rumsey 
V.  Fox,  158  Mieh.  248;  Sheffler  v. 
Sherman,  167  Micli.  42;  R.  L.  Polk 
Printing  Co.  v.  Smedley,  155  Mich. 
242;  Union  Trust  Co.  v.  Detroit 
River  Transit  Co.  162  Mich.  670; 
Mishler  v.  International  Harvester 
Co.,  188  Mich.  104;  Wolf  v.  Me- 
gantz,  184  Mich.  452;  Johnson  v. 
O'Neill,   181   Mich.   326. 

49  Jennison  v.  Stone,  33  Mich.  99 ; 
Gibson  v.  Pelkie,  37  Mich.  380;  Suth- 
erland v.  Crane,  1  Walk.  Ch.  523; 
Chambers  v.  Livermore,  15  Mich. 
381;  Match  v.  Hunt,  38  Mich.  1; 
Groesbeek  v.  Seeley,  13  Mich.  329; 
Fire  Ins.  Ass'n  v.  Wickham,  141 
U.  S.  564;  Kulenkamp  v.  Groff,  71 
Mieh.  675;  Macomb  v.  Wilkinson, 
83  Mich.  486;  Kranich  v.  Slierwootl, 
92  Mich.  397;  Peck  v.  Jennison,  99 
Mich.  326;  Shrinii)tion  &  Sons  v. 
1  Abbott— 43 


Netzorg,  104  Mich.  225;  Ruch  v. 
Ruch,  159  Mich.  231;  Highstone 
v.  Burdette,  61  Mich.  .54;  Eckler  v. 
Alden,  125  Mieh.  215;  Rambo  v. 
Patterson,  133  Mich.  655;  Van 
Houten  v.  Metropolitan  Life  Ins. 
Co.,  110  Mich.  682. 

50  Blackwood  v.  Brown,  34  Mieh. 
4;  Wisconsin  Marine  &  Fire  Ins. 
Co.  Bank  v.  Manistee  Salt  &  Lum- 
ber Co.,  77  Mich.  76;  National  Cash 
Register  Co.  v.  Blumenthal,  85  Mich. 
464;  Stahelin  v.  Sowle,  87  Mieh. 
124;  Hutchinson  Mfg.  Co.  v.  Pinch, 
107  Mich.  12;  Electric  Appliance 
Co.  v.  Standard  Electrical  Co.,  151 
Mich.  662;  Obenaner  v.  Solomon, 
151  Mich.  570;  Potter  v.  Shields, 
174  Mich.  121. 

51  Summers  v.  Wagner,  87  Mich. 
272. 

52  Freese  v.  Arnold,  99  Mich.  13; 
Town  V.  Jepson,  i:'.3  Mich.  673; 
Mouat  V.  Bandet,  123  Mich.  345. 

53  Kendrick  v.  Beard,  81  Mich. 
182;  Wickes  Bros.  v.  Swift  Elec- 
tric Co.,  70  Mich.  322;  Germain  v. 
Central  Lumber  Co.,  116  Mich.  245; 
Seckler  v.  Fox,  51  Mich.  92;  Powers 


674  Evidence  §  15 

the  meaning  of  particular  words ; "  to  show  the  nature 
or  identity  of  the  subject-matter  to  which  the  instrument 
refers ;  ^*  and  to  show  the  known  and  established  usage 
respecting  the  subject  to  which  the  contract  refers.*^ 

§  16.  Writing-s  existence  of  which  is  in  question. 

In  the  third  place,  oral  evidence  cannot  be  sub- 
stituted for  any  writing,  the  existence  of  which  is  dis- 
puted, and  which  is  material  either  to  the  issue  between 
the  parties  or  to  the  credit  of  witnesses,  and  is  not 
merely  the  memorandum  of  some  other  fact." 

§  17.  Oral  evidence  of  fa,cts  evidenced  by  other  writings. 

But  when  the  writing  docs  not  fall  within  either  of 
these  three  classes,  there  is  no  ground  for  excluding 
oral  evidence.  Thus,  if  a  written  communication  be  ac- 
companied by  a  verbal  one,  the  latter  may  be  received 
as  independent  evidence,  though  not  to  prove  the  con- 
tents of  the  writing  or  as  a  substitute  for  it.  And  the  pay- 
ment of  money  may  be  proved  by  oral  testimony,  though 
a  receipt  be  taken;  and,  in  an  action  for  conversion,  it  is 
admissible  to  prove  a  verbal  demand  of  the  goods,  al- 
though a  demand  in  writing  was  made  at  the  same  time." 
And  parol  evidence  is  admissible  to  show  that  a  bill  of 
sale  absolute  on  its  face  was  intended  to  operate  as  a 

V.    Hibbard,    114    Mich.    533;    Stur-  Williams    v.    Walsh    Mfg.    Co.,    169 

gis  V.  Detroit,  etc.,  R.  Co.,  166  Mich.  Mich.  676;   Chase  v.  Ainsworth,  135 

231;   Dunham  v.  W.  Steele  Packing  Mich.   119. 

&    Provision     Co.,    100     Mich.     75 ;  55  Knickerbocker     v.     Wilcox,     83 

Baker  V.  Baird,  79  Mieh.  255;  Greg-  Mich.    200;     Tuthill    v.    Katz,    163 

ory  V.  Village  of  Lake  Linden,  130  Mich.    618;    Brittson   v.    Smith,    165 

Mich.   368.  Mich.  222. 

64  Preston  Nat.  Bank  v.   Geo.   T.  56  Obenauer  v.  Solomon,  151  Mich. 

Smith    Middlings   Purifier    Co.,    102  570 ;  Saginaw  Milling  Co.  v.  Schram, 

Mich.    462;     Christopher    v.     Hech-  186  Mich.  52. 

heimer,  127  Mich.  451;   MacKinnon  57  1  Grccnl.   Ev.   sec.   88. 

Boiler    &    Machine    Co.    v.    Central  68  Title  Guaranty  &  Surety  Co.  v. 

Michigan  Land  Co.,  156  Mich.   11;  Aetna    Indemnity    Co.,    167    Mich. 

Steele   v.    Kellogg,   163   Mich.    132;  535. 


§  19  Evidence  675 

mortgage,^^  and  that  a  deed  purporting  to  be  an  absolute 
conveyance  was  intended  as  a  mortgage.^"' 

§  18.  Proof  of  laws  and  resolutions  of  state. 

The  printed  copies  of  the  constitution,  laws  and  reso- 
lutions of  this  state,  whether  of  a  public  or  private  na- 
ture, which  are  published  under  the  authority  of  the 
government  are  admitted  as  sufficient  evidence  thereof 
in  all  courts  and  in  all  proceedings  within  this  state.^^ 

§  19.  Proof  of  written  laws  and  resolutions  of  other 
states  and  countries. 
Printed  copies  of  the  constitution,  laws  and  resolu- 
tions of  any  other  of  the  United  States  or  any  territory 
thereof  or  of  any  foreign  state,  if  purporting  to  be  pub- 
lished under  the  authority  of  the  respective  govern- 
ments, or  if  commonly  admitted  and  used  as  evidence 
in  their  courts,  will  be  admitted  in  all  courts  and  in  all 
proceedings  within  this  state  as  prima  facie  evidence 
thereof;  and  the  courts  of  this  state  may  also  take  judi- 
cial notice  thereof  without  their  formal  introduction  in 
evidence.®^ 

59  Seligman  V.  Ten  Eyck 's  Estate,  62  Jud.  Act,  eh.  17,  §25;  Comp. 
74  Mich.  525;  Fuller  v.  Parrish,  Laws  1915,  §12513;  Morse  v. 
3  Mich.  211;  Picard  v.  McCormick,  Hewitt,  28  Mich.  481;  People  v. 
11  Mich.  68;  Pinch  v.  Willard,  108  Lambert,  5  Mich.  349;  People  v. 
Mich.  204;  Buhl  Iron  Works  v.  Calder,  30  Mich.  85;  Wilt  v.  Cut- 
Teuton,  67  Mich.  623.  ler,  38  Mich.  189;  Rice  v.  Rankans, 

60  Emerson  v.  Atwater,  7  Mich.  101  Mich.  378;  Dawson  v.  Peterson, 
12;  Barber  v.  Milner,  43  Mich.  248;  110  Mich.  431;  People  v.  McQuaid, 
McArthur  v.  Robinson,  104  Mich.  85  Mich.  123.  As  to  the  former 
540.  Jeffrey  v.  Hursh,  49  Mich.  31;  rule,  see  Worthington  v.  Hanna,  23 
Stevens  v.  Hulin,  53  Mich.  93 ;  Kel-  Mich.  530 ;  Great  Western  R.  Co.  v. 
logg  V.  Northrup,  115  Mich.  327;  Miller,  19  Mich.  305;  People  v. 
Carveth  v.  Winegar,  133  Mich.  34.  Lambert,  5  Mich.  349. 

61  Jud.  Act,  ch.  17,  §  24 ;  Comp. 
Laws  1915,  §12512;  Wilt  v.  Cutler, 
38   Mich.   189. 


676  Evidence  §  20 

§  20.  Proof  of  unwritten  or  common  law  of  other  states 
and  countries. 
The  unwritten  or  common  law  of  any  other  state  or 
tei'ritory  of  the  United  States,  or  of  any  foreign  state  or 
country  may  be  proved  as  facts  by  parol  evidence;  and 
the  books  of  reports  of  cases  adjudged  in  their  courts 
may  also  be  admitted  as  cvick'uce  of  such  law;  and  the 
courts  of  this  state  may  also  take  jndicial  notice  there- 
of.*"^  The  rule  formerly  was  that  the  common  hiw  as  it 
exists  in  this  state  would  be  presumed  to  prevail  in  an- 
other state  or  foreign  country,  in  the  absence  of  proof  to 
the  contrary.^* 

§  21.  Proof  of  ordinances,  etc.,  of  municipalities. 

Courts  of  general  jurisdiction,  as  distinguished  from 
purely  municipal  courts,  w^ili  not  take  judicial  notice 
of  municipal  ordinances  and  resolutions.^®  Whenever  it 
is  necessary  to  prove  any  of  the  laws,  resolutions,  regu- 
lations or  ordinances  of  any  incorporated  village  or  city 
in  tliis  state,  they  may  be  read  in  all  courts  and  in  all 
proceedings  (1)  from  a  record  thereof  kept  by  the  clerk, 
(2)  from  a  copy  of  the  ordinance  or  of  the  record  thereof 
certified  by  the  clerk  under  the  corporate  seal  of  the  vil- 
lage or  city,  (3)  from  a  printed  copy  jnirporting  to  be 
published  by  authority  of  the  council  or  board  of  trus- 
tees in  a  newspaper  publislied  in  the  viUage  or  city,  or 
(4)  from  any  volume  of  ordinances  j)urp()rting  to  have 
been  printed  by  authority  of  the  council  or  board  of 
trustees.  In  such  cases,  it  is  not  necessary  to  i)rove  also 
the  enactment,  publishing  or  any  other  thing  concerning 
the  sanie.^*^ 

63,Jucl.   Act,   eh.   17,    §27;    Comp.  v.  Loomis,  106  Mich.  250. 

Laws   1915,   !5  12515.  65  People    v.    Qiiider,    172    Mich, 

64TIutchin.s   v.   Kimmell,   31   Mich.  280. 

1.3.',;    High's   Appeal,   2   Doug.   515;  66  J  ml.   Act,   eh.    17,    §26;    Comp. 

Crane   v.   Hardy,   1   Mich.   56;    Ellis  Laws   1915,  §12514. 
V.    Maxson,    19    Mich.    186;    People 


§  23  Evidence  677 

§  22.  Public  books  and  records  as  evidence. 

Books  kept  l)y  persons  in  pnblic  ofliee,  in  wliicli  tlie}^ 
are  required,  either  by  statute  or  the  nature  of  their 
ofiice,  to  record  particnhir  transactions  occurring  in  the 
course  of  their  public  duties  and  under  their  personal  ob- 
servation, are  admissible  in  evidence  on  account  of  the 
extraordinary  confidence  reposed  in  them  from  their 
having-  been  made  by  authorized  and  accredited  agents 
appointed  for  the  purpose,  as  well  as  from  the  publicity 
of  their  subject-matter.  When  the  books  themselves  are 
produced,  tliey  are  received  as  evidence  without  further 
attestation.  But  they  must  be  accompanied  by  proof 
that  they  come  from  the  proper  repository.^'''  By  statu- 
tory provision,  copies  of  all  papers,  records,  entries  and 
documents  required  by  law  to  be  filed  by  any  public 
officer  in  his  office  or  to  be  entered  or  recorded  therein 
and'  duly  filed,  entered  or  recorded  according  to  law,  cer- 
tified by  such  officer  to  be  a  true  transcript  compared  by 
him  with  the  original  in  his  office,  are  evidence  in  all 
courts  and  proceedings  in  like  manner  as  the  originals 
would  be  if  ijroduced.*' 

§  23.  Proof  of  records  and  proceedings  of  state  courts. 

Under  the  system  established  by  the  statutes  and  the 
practice  of  the  courts  in  Michigan,  a  connnon  law  record 
of  a  judgment  is  not  necessary.  The  fdes  and  journal 
entries  are  a  substitute  for  the  common  law  record  and 
constitute  the  record  itself. ^^  They  are  competent  evi- 
dence to  prove  a  judgment,  and,  for  that  purpose,  are 
admissible  not  only  in  the  court  whose  records  they  are, 

67  1  Greenl.  Ev.  sec.  485.  v.  Kccslcr,  .'56  Mu-li.  69;  Huntoon  v. 

68Jud.   Act,   ch.    17,    §19;    Coni]).  O'Brien,   79  Mich.  227. 
Laws    1915,    §12507;     HofTman    v.  69  Norvell    v.    McHenry,    1    Mich. 

Pack,   Woods   &   Co.,   114   Mich.    1;  227;    Crane  v.   Hardy,  1    Mich.  56; 

Sheldon    v.    Merrill,    69    Mich.    156;  Keiiyon    v.    Baker,    16    Mich.    373; 

Murphy  v.  Cady,  145  Mich.  33;  Bills  Emery   v.   Wliitwell,  6   Mich.   474. 


678  Evidence  §  23 

but  also  in  all  the  other  courts  of  this  stated"  If  the  files 
have  been  lost,  the  calendar  entries  may  be  introduced  in 
evidence  to  show  the  steps  that  have  been  taken  in  a 
case.'^  By  virtue  of  the  statute,  the  copies  of  the  files  and 
entries,  duly  certified,  may  be  used  as  evidence  in  like 
manner  as  the  original  files  and  entries.'^ 

A  copy  of  any  order,  judgment  or  decree  of  any  court 
of  record  in  this  state,  duly  authenticated  by  the  cer- 
tificate of  the  judge  or  clerk  of  the  court  under  the  seal 
of  the  court,  is  admissible  in  evidence  in  any  court  of  this 
state  and  is  prima  facie  evidence  of  the  jurisdiction  of  the 
court  over  the  parties,  of  all  facts  recited  therein  and  of 
the  regularity  of  all  proceedings  prior  to  and  including 
the  making  of  the  order,  judgment  or  decree.'^ 

§  24.  Proof  of  records  and  proceedings  of  courts  of  other 
states  and  countries. 
The  records  and  judicial  proceedings  of  any  court  in 
the  several  states  and  territories  of  the  United  States  or 
of  any  foreign  country  are,  by  statutory  provision,  ad- 
mitted in  evidence  in  the  courts  of  this  state  upon  being 
authenticated  by  the  attestation  of  the  clerk  of  such 
court,  with  the  seal  of  the  court  annexed  or  of  the  officer 
in  whose  custody  such  records  are  legally  kept,  with  the 
seal  of  his  office  annexed.'*  And  copies  of  such  records 
and  proceedings  in  the  courts  of  a  foreign  country  may 
also  be  admitted  in  evidence  upon  due  proof  (1)  that 
the  copy  offered  has  been  compared  by  the  witness  with 
the  original  and  is  an  exact  copy  of  the  whole  of  such 
original,  (2)  that  such  original  was  in  the  custody  of  the 

70  Prentiss   v.   Holbrook,   2   Mich.  Laws  1915,  §  12506.     And  see  Jud. 

372;  Crane  v.  Hardy,  1  Mich.  56.  Act,  ch.  17,  §29;  Comp.  Laws  1915, 

TlNorvell    v.    McHenry,    1    Mich.  §12517. 

227.  74  Jud.    Act,   ch.   17,    §15;    Comp. 

72  Jud.   Act,  ch.    17,   §19;    Comp.  Laws     1915,     §12503;     Capling    v. 

Laws  1915,  §  12507.  Herman,  17  Mich.  524. 

78  Jud.   Act,  ch.   17,    §18;    Comp. 


§25  Evidence  679 

clerk  of  the  court  or  other  officer  legally  having  charge 
of  the  same,  and  (3)  that  such  copy  is  duly  attested  by 
a  seal,  which  shall  be  proved  to  be  the  seal  of  the  court 
in  which  such  record  or  proceeding  shall  be.'* 

And  proof  of  any  record  or  judicial  proceeding  of  the 
courts  of  any  foreign  country  may  also  be  made  accord- 
ing to  the  rules  of  the  common  law.''^^  The  usual  modes 
of  authenticating  foreign  judgments  are  either  (1)  by 
an  exemplification  of  a  copy  under  the  great  seal  of  a 
state,  or  (2)  by  a  copy  proved  to  be  a  true  copy  by  a  wit- 
ness who  has  compared  it  with  the  original,  or  (3)  by 
the  certificate  of  an  officer  properly  authorized  by  law  to 
give  a  copy,  which  certificate  must  itself  also  be  duly 
authenticated.  If  the  copy  is  certified  under  the  hand  of 
the  judge  of  the  court,  his  handwriting  must  be  proved. 
If  the  court  has  a  seal,  it  ought  to  be  affixed  to  the  copy 
and  proved.  And  if  it  is  proved  that  the  court  has  no 
seal,  it  must  be  shown  to  possess  some  other  requisites  to 
entitle  it  to  credit.  If  the  copy  is  merely  certified  by  an 
officer  of  the  court,  without  other  proof,  it  is  inadmis- 
sible.'^ 

§  25.  Proof  of  proceedings  of  justices  of  peace. 

The  original  entry  of  any  judgment  or  other  proceed- 
ing, or  a  transcript  from  the  docket  of  any  justice  of  the 
peace  of  any  judgment  had  before  him,  of  the  proceed- 
ings in  the  cause  previous  to  such  judgment,  of  the  exe- 
cution issued  thereon,  if  any,  and  of  the  return  to  such 
execution,  if  any,  when  certified  by  the  justice  having 
control  of  the  docket,  is  evidence  in  all  courts  of  this 
state  to  prove  the  facts  stated  in  such  original  or  in  such 
transcript.'^     When    the    judgment    is   entered    in    the 

76Jua.   Act,  ch.   17,   §16;    Comp.  78  Jud.   Act,  ch.   17,    §30;    Comp. 

Laws  1915,  §12504.  Laws    1915,    §12518;     Holcomb    v. 

76Jud.   Act,   ch.   17,    §17;    Comp.  Tift,  54  Mich.  647. 

Laws  1915,    §  12505.  The  docket  entries  to  and  includ- 

77Capling    V.    Herman,    17    Mich.  ing   a   judgment   in    an    attachment 

524.  suit  must  be  supplemented  by  proof 


680  Evidence  .  §  25 

docket,  it  cannot  be  proved  by  the  parol  evidence  of  the 
justice  of  the  contents  of  the  docket.  The  docket  is  the 
best  evidence  of  the  judgment;  but,  if  the  judgment  has 
not  been  entered  in  the  docket,  the  minutes  or  memo- 
randa of  the  justice,  made  at  the  time  of  giving  the  judg- 
ment and  filed  with  the  papers  in  the  cause,  when  proved 
by  the  justice,  are  competent  evidence.''^  A  transcript 
of  a  justice's  judgment,  not  ceitifiod,  may  bo  i)r()ved  by 
the  testimony  of  the  justice. *° 

§  26. Of  other  states. 

The  official  certificate  of  any  justice  of  the  peace  within 
any  other  state  of  the  United  States  of  the  proceedings 
and  judgment  in  any  case  before  him  as  such  justice, 
with  the  certificate  of  the  clerk  of  any  court  of  record  in 
the  county  or  district  in  which  the  justice  has  executed 
his  office,  attested  by  his  official  seal,  setting  forth  that 
the  signature  to  tlie  certificate  of  the  justice  is  genuine 
and  that  he  was  such  justice  at  the  date  of  sucli  proceed- 
ings and  judgment,  is  sufficient  evidence  of  such  pro- 
ceedings and  judgment. ^^ 

§  27.  Certificate  of  sale  on  execution. 

The  certificate  given  to  the  purchaser  of  real  estate 
at  a  sale  upon  execution  by  the  officer  making  the  sale  or 
the  record  thereof  or  a  transcript  of  such  record,  duly 
certified  by  the  register  of  deeds,  is  prima  facie  evidence 
of  the  facts  therein  set  forth  and  of  the  regularity  of  the 
sale  and  all  proceedings  in  the  cause  anterior  thereto.®'' 

of  a  proper  affidavit   for  the   writ.  justice.      Jud.    Act,    ch.    17,    §31; 

Goodrich  v.  Burdick,  26  Mich.  .39.  Comp.  Laws  1915,  §  12519. 

79Hickey    v.    Hinsdale,    8    Mich.  SOWilber    v.    Goodrich,    .34    Mich. 

267;    Schlatterer  v.   Niokodenuia,  50  84. 

Mich.  315.  81Jud.   Act,   ch.    17,    §23;    Comp. 

The  proceedings  in   any   cause   or  Laws   1915,   8  12511. 

matter    had    before    a    justice    may  82  .Jud.   Act,   ch.   23,    §95;    Comp. 

also   be   proved   by   the   oath   of  tlie  Laws   1915,  §  12910. 


§  29  Evidence  681 

§  28.  Proof  of  publication. 

The  affidavit  of  the  i)riiiter,  or  of  the  foreman  or  clerk 
of  any  printer,  of  a  public  newspaper  published  in  this 
state  of  the  publication  of  any  notice  or  advertisement 
which,  by  any  law  of  this  state,  is  required  to  be  pub- 
lished in  such  newspaper  is  entitled  to  be  road  in  all 
courts  in  this  state  and  in  all  proceedings  before  any 
officer,  body  or  board  in  which  it  is  deemed  necessary  to 
refer  thereto,  and  will  be  prima  facie  evidence  of  such 
publication  and  of  the  facts  therein  stated.^^ 

§  29.  Conveyances   and  instruments   entitled  to  be  re- 
corded. 

All  conveyances  and  other  instruments  authorized  by 
law  to  be  filed  or  recorded,  and  which  are  acknowledged 
or  proved  according  to  law,  and,  if  the  same  have  been 
filed  or  recorded,  the  record  or  a  transcript  of  tlie  record, 
or  a  copy  of  the  instrument  on  file,  certified  by  the  officer 
in  whose  office  it  has  been  filed  or  recorded,  may  be  read 
in  evidence  in  any  court  within  this  state  without  fur- 
ther proof  thereof,  but  the  effect  of  such  evidence  may 
be  rebutted  by  other  competent  testimony.^*  The  term, 
''conveyance,"  as  here  used,  embraces  every  instrument 
in  writing  by  which  any  estate  or  interest  in  real  estate 
is  created,  alienated,  mortgaged  or  assigned  or  by  which 
the  title  to  real  estate  may  be  affected  in  law  or  in  equity, 
except  wills,  leases  for  a  term  not  exceeding  three  years 

83.Jud.    Act,   ch.    17,    §;^8;    Conip.  84  Jud.    Act,   eh.   17,    §20;    Conip. 

Laws  1915,  §12526.  Laws  1915,  S  12508;  Webb  v.  Holt, 

The  supreme  court  has  defined  a  113  Mich.  338. 

newspaper     as    a     sheet    of     paper  As  to  recording  patents  for  land 

printed  and  distributed  at  short  in-  from  the  United  States  or  this  state, 

tervals  for  conveyincj  intelligence  of  or   certified   copies  of   such   patents, 

passing  events,  a  public   print    that  and  tiie  force  and  effect  thereof,  see 

circulates  news,  advertisements,  pro-  llow.  Stat.   (2nd  ed.)    10846,  10847; 

ceedings  of  legislative  bodies,  public  Comp.   Laws   1915,   §§  11717,  11718. 
documents  and   the  like.     Lynch  v. 
Durfec,  101  Mich.  171. 


682  Evidence  §  29 

and  executory  contracts  for  the  sale  or  purchase  of 
lands."^  But  letters  of  attorney  or  other  instruments  con- 
taining a  power  to  convey  lands  as  the  agent  or  attorney 
for  the  owner  of  the  lands  and  every  executory  contract 
for  the  sale  or  purchase  of  lands,  when  acknowledged  or 
proved  as  provided  by  law,  may  be  recorded  in  the  regis- 
try of  deeds  of  any  county  in  which  are  situated  the  lands 
to  which  such  power  or  contract  relates,  and,  when  so 
acknowledged  or  proved,  the  record  thereof,  when  re- 
corded, or  a  transcript  of  the  record  duly  certified,  may 
be  read  in  evidence  in  the  same  manner  and  with  the  like 
effect  as  a  conveyance  recorded  in  such  county.®^ 

§  30.  When  testimony  of  subscribing"  witness  is  required. 

It  is  a  general  rule,  framed  originally  in  regard  to 
deeds,  but  later  extended  to  every  species  of  writing,  that 
a  written  instrument  must  be  proved  by  the  subscribing 
witnesses,  if  there  be  any,  or  at  least  by  one  of  them."  A 
subscribing  witness  is  one  who  was  present  when  the  in- 
strument was  executed  and  who,  at  that  time,  at  the 
request  or  w^ith  the  assent  of  the  party  executing  it,  sub- 
scribed his  name  to  it  as  a  witness  of  the  execution.  It, 
however,  is  not  necessary  that  the  witness  should  have 
actually  seen  the  party  sign  or  have  been  present  at  the 
very  moment  of  signing.  If  he  is  called  in  immediately 
afterwards  and  the  party  acknowledges  his  signature  to 
the  witness  and  requests  him  to  attest  it,  this  will  be 
deemed  part  of  the  transaction  and,  therefore,  a  sufficient 
attestation.'^ 

To  this  rule,  requiring  the  production  of  subscribing 
witnesses,  there  are  several  classes  of  exceptions.  The 
first  is  where  the  instrument  is  thirty  years  old;  in  which 

86  How.    Stat.    (2nd    ed.)    10856;  Biilen    v.    Granger,    63    Mieh.    311; 

Comp.  Laws  1915,   §11726.  .Tones  v.  Phelps,  5  Mich.  218;  Gibbs 

86  How.    Stat.    (2nd    ed.)     10857;  v.  Linabury,  22  Mich.  479. 
Comp.  Laws  1915,  §  11727.  88  1  Greenl.  Ev.  sec.  569a. 

87  Hess  V,  Griggs,  43  Mich.  397; 


§  30  Evidence  683 

case,  it  is  said  to  prove  itself,  the  subscribing  witnesses 
being  presumed  to  be  dead  and  other  proof  being  pre- 
sumed to  be  beyond  the  reach  of  the  party.*®  A  second 
exception  is  where  the  instrument  is  produced  by  the  ad- 
verse party  pursuant  to  notice,  the  party  producing  it 
claiming  an  interest  under  the  instrument.®"  In  this 
case,  the  party  producing  the  instrument  is  not  per- 
mitted to  call  on  the  other  for  further  proof  of  its  execu- 
tion; for,  by  claiming  an  interest  under  the  instrument, 
he  has  admitted  its  execution.  The  same  principle  is 
applied  where  both  parties  claim  similar  interests  under 
the  same  deed;  in  which  case,  the  fact  of  such  claim  may 
be  shown  by  parol.®^  A  third  class  of  exceptions  to  this 
rule  arises  from  the  circumstances  of  the  witnesses  them- 
selves, the  party,  either  from  physical  or  legal  obstacles, 
being  unable  to  produce  them;  as,  if  the  witness  is  proved 
or  presumed  to  be  dead  or  cannot  be  found  after  diligent 
inquiry  or  is  out  of  the  jurisdiction  of  the  court  or  has 
become  an  adverse  party.®^  A  fourth  exception  has  been 
sometimes  admitted  in  regard  to  official  bonds  required 
by  law  to  be  taken  in  the  name  of  some  public  function- 
ary in  trust  for  the  benefit  of  all  persons  concerned,  to 
be  preserved  in  some  public  office  for  their  protection 
and  use,  of  the  due  execution  of  which,  as  well  as  of  their 
sufficiency,  such  officer  must  first  be  satisfied  and  the 
bond  approved  before  the  party  is  qualified  to  enter  upon 
the  duties  of  his  office.®* 

And  the  rule  requiring  the  production  of  subscribing 
witnesses  has  been  relaxed  to  a  very  important  extent  in 
this  state  by  statutory  provision.  One  such  provision  is 
that  every  written  instrument,  except  promissory  notes 

89  Township  of  Jasper  v.  Martin,  90  1    Greenl.    Ev.    sec.    570 ;    Ray- 

161  Mich.  336.     See  also  Willets  v,  burn  v.  Mason  Lumber  Co.,  57  Mich. 

Mandlebaum,    28   Mich.    521;    Hein-  273. 

miller  v.   Hatheway,  60  Mich.  391 ;  91 1  Greenl.  Ev    sec.  571.    - 

King    V.    Merritt,    67    Mich.    194;  92  1  Greenl.  Ev   sec.  572. 

Murphy  v.  Cady,  145  Mich,  33.  93  1  Greenl.  Et   sec.  573. 


684  Evidence  1 30 

and  bills  of  exchange  and  except  the  last  wills  of  de- 
ceased persons,  maj^  be  proved  or  acknowledged  in  the 
manner  now  provided  by  law  for  taking  the  proof  or  ac- 
knowledgment of  conveyances  of  real  estate,  and  that  the 
certificate  of  the  proper  officer,  indorsed  thereon,  will 
entitle  such  instrument  to  be  received  in  evidence  on  the 
trial  of  any  action,  with  the  same  effect  and  in  the  same 
manner  as  if  such  instrument  were  a  conveyance  of  real 
estate.**  It  is  also  provided  by  statute  that,  whenever, 
upon  the  trial  of  any  action,  civil  or  criminal,  or  upon 
the  hearing  of  any  judicial  proceeding,  a  written  instru- 
ment is  offered  in  evidence  to  which  there  is  a  subscrib- 
ing witness,  it  shall  not  be  necessary  to  call  such  sub- 
scribing witness,  but  such  instrument  may  be  proved  in 
the  same  manner  as  it  might  be  if  there  were  no  sub- 
scribing witness,  except  in  cases  of  written  instruments 
to  the  validity  of  which  one  or  more  subscribing  wit- 
nesses are  required  by  law.*^ 

§  31.  Wills  as  evidence. 

Every  will,  when  proved  as  provided  by  law,  is  re- 
quired by  statute  in  this  state  to  have  a  certificate  of 
such  proof  indorsed  thereon  or  annexed  thereto,  signed 
by  the  judge  of  probate  and  attested  by  his  seal.  Every 
will  so  certified  and  the  record  thereof  or  a  transcript 
of  such  record,  certified  by  the  judge  of  probate  and 
attested  by  his  seal,  may  be  read  in  evidence  in  all  courts 
within  this  state  without  further  proof .^^ 

§  32.  Books  of  account  as  evidence. 

The  admission  of  a  party's  ))ooks  of  account  in  proof 
of  the  delivery  of  goods  or  services  performed  charged 

94Ju(l.   Act,   eh.   17,    §41;    Comp.  96  Jud.    Act,   ch.    52,    §30;    Comp. 

Laws    1915,     §12529;     Cameron    v.      Laws   1915,   §13802. 
Culkins,  44  Mich.  531. 

95  Jud.   Act,   ch.   17,    §50;    Comp. 
Laos   1915,   §  12538. 


§  32  EviDExcE  685 

therein,  the  entries  having  been  made  by  his  clerk,  is 
upon  the  principle  that  they  arc  a  part  of  the  res  gestae. 
They  constitute  parts  of  a  chain  or  combination  of  trans- 
actions between  the  parties,  the  proof  of  one  of  which 
raises  a  presumption  that  another  has  taken  place.  The 
books  must  have  been  kept  for  the  purpose,  and  the 
entries  must  have  been  made  contemporaneously  with 
the  delivery  of  the  goods  and  by  the  person  whose  duty 
it  was  for  the  time  being  to  make  them  ^'''  and  who  had 
personal  knowledge  of  the  facts  stated  in  them.®* 

When  the  person  who  made  the  entries  had  no  per- 
sonal knowledge  of  the  acts  recorded,  but  made  them 
from  the  statements  or  reports  of  others,  the  book  is 
mere  hearsay.  In  one  of  the  earliest  reported  cases  upon 
this  subject,  the  plaintiff,  being  a  brewer,  sued  the  de- 
fendant for  beer  sold  and  delivered,  and,  to  sustain  the 
a.ction,  offered  his  book  of  account  as  evidence.  It  ap- 
peared that  the  book  was  kept  by  the  plaintitf 's  clerk, 
that  plaintiff's  draymen  came  every  night  and  reported 
the  beer  delivered  during  the  day  and  that  the  dray- 
men set  their  hands  to  the  entries  when  the  clerk  had 
made  them;  and  upon  proof  of  the  handwriting  of  the 
drayman  w^ho  delivered  the  beer  to  the  defendant,  and 
of  the  death  of  the  drayman,  the  book  was  admitted  in 
evidence  and  held  sufficient  to  sustain  the  action.'*  In 
this  case,  the  entries,  being  signed  by  the  draymen  who 
liad  personal  knowledge  of  the  delivery  of  the  beer,  were 
treated  as  the  entries  of  the  draymen  and  accordingly 
admitted.  In  another  early  case,  the  question  was 
whether  the  defendant  had  delivered  a  watch  to  a  third 
person  as  directed  ])y  the  plaintiff,  and  an  entry  made 
by  the  defeiidnnt  himself  in  a  book  which  he  kei)t  for 

97  Kiix  V.  Central  Micliigan  8av.  99  Priep  v.  Earl  of  Torriiiijtoii,  I 
Bank,  9:S  Midi.  fill.  Salk.    285;     1     Smith's    Lead.    Cas. 

98  8wan  v.  Tliurman,  112  Midi.  i;59;  Brain  v.  Prooce,  11  Mcps.  &  W. 
416;  Baxter  v.  Reynolds,  112  Midi.  77:5;  Goul.l  v.  Conway,  59  Barb.  (N. 
471.  Y.)    355. 


686  Evidence  §  32 

that  pui'pose,  upon  proof  that  such  was  his  custom  in 
his  business,  was  held  admissible  to  establish  the  fact 
of  the  delivery  of  the  watch. ^  From  the  earliest  cases, 
the  admission  of  book-entries  has  proceeded  upon  the 
theory  that  the  persons  making  the  entries  had  personal 
knowledge  of  the  facts  stated  in  the  entries.^  The  value 
of  such  an  entiy  as  evidence  lies  in  this,  that  it  was 
contemporaneous  with  the  principal  fact  done,  form- 
ing a  link  in  the  chain  of  events  and  being  a  part  of  the 
res  gestae.  It  is  upon  this  ground  that  such  entries  are 
admitted,  and  therefore  it  can  make  no  difference  as  to 
their  admissibility  whether  the  party  who  made  them 
be  living  or  dead  or  whether  he  was  interested  in  mak- 
ing them,  his  interest  going  merely  to  affect  the  weight 
or  credibility  of  the  evidence  when  admitted.*  But 
whether  the  person  who  made  the  entries  be  living  or 
dead,  the  entries  cannot  be  introduced  to  prove  facts 
of  which  he  had  no  personal  knowledge  at  the  time  the 
entries  were  made.* 

In  this  country  at  least,  books  of  account  are  admis- 
sible as  evidence  of  the  facts  entered,  whether  kept  by 
the  party  himself  or  by  his  clerk,  and  the  New  York 
rule,  as  expounded  in  the  case  of  Vosburgh  v.  Thayer,* 
has  been  recognized  in  Michigan.  According  to  this 
rule,  the  books  of  account  of  the  party  cannot  be  ad- 
mitted unless  a  foundation  is  first  laid  by  proving  that 
the  party  had  no  clerk,  that  some  of  the  articles  charged 
have  been  delivered,  that  the  books  produced  are  the 
account  books  of  the  party,  and,  by  those  who  have 
dealt  and  settled  accounts  with  him,  that  he  keeps  fair 
and  honest  accounts.^    When  the  parties  to  a  suit  were 

IDigby  V.  Stedman,     1  Esp.  328.  5  Vosburgh  v.   Thayer,   12   Johns. 

2  Swan    v.    Thurman,    112    Mich.       (N.  Y.)   461. 

416;   Peters  v.  Oallagher,  37  Mich.  6  Jackson  v.  Evans,  8  Mich.  476; 

407;   Fish  v.  Adams,  37  Mich.  598.  Foster  v.   Coleman,   1   E.   D.   Smith 

3  1  Greenl.  Ev.  sec.  120.  (N.  Y.)    85;   Conklin  v.  Stamler,  2 

4  Swan  V.  Thurman,  112  Mich.  416.  Hilt.   (N.  Y.)  422;   8  Abb.  Pr.  (N. 


§  32  Evidence  687 

excluded  from  being  examined  as  witnesses,  it  was  cus- 
tomary for  the  party  to  prove  by  those  who  had  dealt 
and  settled  accounts  with  hifn  that  he  kept  fair  and 
honest  accounts,  but  since  the  incompetency  of  parties 
as  witnesses  has  been  removed  by  statute,  the  party  of- 
fering his  books  of  account  may  himself  testify  as  well 
to  their  correctness  as  to  any  other  fact,  and  it  is  there- 
fore unnecessary  to  adduce  the  testimony  of  persons 
who  have  settled  accounts  from  the  books.'  Or  where 
the  books  have  been  kept  by  a  party's  bookkeepers,  it 
may  be  proved  that  they  were  correctly  and  accurately 
kept  by  the  testimony  of  such  bookkeepers.^ 

In  order  to  entitle  books  of  account  to  be  received  as 
evidence,  it  must  appear  that  the  person  keeping  and 
producing  them  is  usually  precise  and  punctilious  re- 
specting the  entries  therein  and  that  they  were  designed 
at  least  to  embrace  all  the  items  of  the  account  which 
are  proper  subjects  of  entry.^  When  books  of  account 
are  received  in  evidence,  it  is  only  where  the  entries  are 
apparently  made  of  items  as  they  arise  and  as  con- 
temporaneous res  gestae.  But  an  entry,  not  of  particu- 
lar payments  or  advances  or  even  of  any  aggregate,  but 
merely  of  what  remains  due  as  a  balance  after  allow- 
ing set-offs  and  counter-claims,  does  not  come  within 
any  known  rule  of  evidence.^" 

Where  the  suit  is  brought  upon  an  account  shown  to 

Y.)     395;     Tomlinson    v.    Borst,    30  8  Seventh-Day       Adventist       Pub. 

Barb.   (N.  Y.)   42;  Burke  v.  Wolfe,  Ass'n  v.  Fisher,  95  Mich.  274;  Bax- 

38    N.   Y.   Super.    Ct.    263;    Linnell  ter    v.    Keynoltls,    112    Mich.    471; 

V.    Sutherland,    11    Wend.    (N.    Y.)  Union  Central  Life  Ins.  Co.  v.  Smith, 

568;    Larue    v.    Eowland,    7    Barb.  119  Mich.  171. 

(N.  Y.)    107.  9  Countryman      v.      Bunker,      101 

7  Montague   v.   Dougan,    68   Mich.  Mich.    218;     Montague    v.    Dougan, 

98;   Brown  v.  Weightman,  62  Mich.  68  Mich.  98. 

557;     Seventh-Day    Adventist    Pub.  10  McClintock 's   Appeal,   58   Mich. 

Ass'n    v.     Fisher,    95     Mich.     274;  152;    Eobinson    v.    Hoyt,    39    Mich. 

Mally  v.  Excelsior  Wrapper  Co.,  181  405. 
Mich.  568;   Smaltz  v.  Newhof,   178 
Mich.  500. 


688  Evidence  §32 

have  been  charged  in  plaintiff's  books  of  account,  the 
defendant  is  entitled  to  a  full  cross-examination  upon 
all  that  the  books  would  show.  He  is  not  bound  to  make 
the  plaintiff  his  witness,  and  the  plaintiff  should  pro- 
duce the  books. ^* 

§  33.  Statutory  extension  of  principle. 

The  principle  admitting  books  of  account  as  evidence 
has  been  given  a  more  extensive  application  in  this 
state  by  a  statutory  provision  which  declares  that,  in 
all  trials,  hearings  and  proceedings  in  any  cause  or  suit 
in  any  court  or  before  any  officer,  arbitrators  or  referees, 
books  of  account  containing  charges  or  entries  for 
money  paid,  laid  out,  furnished  or  lent  shall  be  received 
in  evidence  and  deemed  to  be  evidence  of  such  charges 
and  entries  and  that  such  moneys  ^vere  so  paid,  laid  out, 
furnislied  or  lent  as  is  in  such  books  charged  or  en- 
tered, and  of  the  liability  of  the  person  charged  there- 
for, in  the  same  manner  and  to  the  same  extent  as  books 
of  account  containing  charges  for  goods,  wares  or  mer- 
chandise sold  and  delivered  are  received  and  admitted 
as  evidence  of  the  sale  and  delivery  of  such  goods,  wares 
and  merchandise  and  of  the  liability  of  the  person 
charged  therefor;  but  this  does  not  apply  to  cases  of 
persons  acting  or  having  acted  as  commission  mer- 
chants or  agents  for  the  sale  of  produce,  grain  or  other 
}H-operty  on  commission,  except  as  to  the  amount 
charged  as  commission  for  selling  or  buying  such  pro- 
duce, grain  or  other  property,  unless  accompanied  by  a 
voucher  or  receipt  for  the  money  claimed  to  have  been 
laid  out,  lent  or  furnished. ^^  The  books  of  a  corpora- 
tion defendant,  when  properly  kept  by  the  proper  offi- 
cers or  agents  of  the  company,  are  competent  to  prove 

11  McCausland   v.   King,  60   Mich.       Laws     1915,     §12541;     Eichards    v. 
70.  Burroughs,  62  Mich.  117;  Boglarsky 

12Jud.    Act,   ch.    17,   §53;    Comii.       v.  Singer  Mfg.  Co.,  65  Mich.  510. 


§  34  Evidence  689 

the  paj^ment  of  moneys  by  the  defendant  to  the  plain- 
tiff." 

§  34.  As  dependent  on  affidavit. 

It  is  provided  by  statute  that,  in  all  actions  brought 
in  any  court  of  this  state  to  recover  the  amount  due  on 
an  open  account  or  upon  an  account  stated,  if  the  plain- 
tiff or  some  one  in  his  behalf  shall  make  an  affidavit  of 
the  amount  due,  as  near  as  he  can  estimate  the  same, 
over  and  above  all  legal  set-off,  and  annex  thereto  a 
copy  of  the  account  and  cause  a  copy  of  such  affidavit 
and  account  to  be  served  upon  the  defendant  with  a 
copy  of  the  declaration  filed  in  the  cause,  or  with  the 
process  by  which  the  action  is  commenced,  such  affi- 
davit shall  be  deemed  prima  facie  evidence  of  such  in- 
debtedness, unless  the  defendant,  with  his  plea,  shall, 
by  himself  or  agent,  make  an  affidavit  and  serve  a  copy 
thereof  on  the  plaintiff  or  his  attorney,  denying  the 
same;  and  if  the  defendant  in  any  action  gives  notice 
with  his  plea  of  a  set-off  founded  upon  an  open  account 
or  upon  an  account  stated  and  annexes  to  his  plea  and 
notice  a  copy  of  such  account  and  an  affidavit  made  by 
himself  or  by  some  one  in  his  behalf,  showing  the 
amount  or  balance  claimed  by  the  defendant  upon  such 
account  and  that  such  amount  or  balance  is  justly  owing 
and  due  to  the  defendant,  or  that  he  is  justly  entitled 
to  liave  such  account  or  balance  set  off  against  the  claim 
made  by  the  phnntiff,  and  serves  a  copy  of  the  account 
and  affidavit,  with  a  copy  of  his  plea  and  notice,  upon 
the  plaintiff  or  his  attorney,  such  affidavit  will  be 
deemed  prima  facie  evidence  of  such  set-off  and  of  the 
plaintiff" 's  liability  tliereon,  unless  the  plaintiff"  or  some 
one  in  his  behalf,  within  after  ten  days  after  such  service 
in  causes  in  the  circuit  court  and  before  trial  in  other 

13  Caiithcr   v.  James  Jcnks  &  Co., 
76  Mich.  510. 

1  Abbott— 4-1 


690  Evidence  §  34 

cases,  makes  an  affidavit  denying  such  account  or  some 
part  thereof  and  the  plaintiff's  indebtedness  or  liability 
thereon,  and  serves  a  copy  of  it  upon  the  defendant  or 
his  attorney;  and  in  case  of  a  denial  of  part  of  such  set- 
off, the  defendant's  affidavit  will  be  prima  facie  evi- 
dence of  such  part  of  the  set-off  as  is  not  denied  by  the 
plaintiff's  affidavit.  Any  affidavit  mentioned  herein 
will  be  deemed  sufficient  if  made  within  ten  days  next 
preceding  the  issuing  of  the  writ  or  filing  of  the  decla- 
ration or  plea.^* 

To  render  the  affidavit  effectual  as  prima  facie  evi- 
dence, the  statute  must  be  complied  with,  and  the  rec- 
ord must  show  the  fact  or  competent  proof  made  there- 
of." One  of  the  essentials  is  that  proof  be  made  of  the 
service  of  the  affidavit  as  the  statute  requires. ^^  But 
the  adverse  party  may  waive  strict  compliance  with  the 
requirements  of  the  statute;  and  accordingly,  where  the 
affidavit  was  not  in  compliance  with  it,  and  would  not 
properly  be  received  in  evidence  if  seasonably  objected 
to,  it  was  held  that  a  party  who  appears  and  allows  the 
paper  to  be  made  evidence  and  withheld  all  objection 
until  the  proof  was  closed,  had,  by  his  silence,  acquiesced 
in  the  reception  of  the  affidavit  as  evidence  and  waived 
his  right  to  object  to  its  insufficiency  thereafter.^'  The 
affidavit  is  made  prima  facie  evidence,  but,  like  other 
evidence,  it  must  be  introduced  in  evidence.^' 

§  35.  Affidavit  of  co-partnership  or  association. 

In  any  suit  or  proceeding  instituted  in  any  of  the 
courts  of  this  state,  wherein  it  becomes  necessary  to 
prove  the  co-partnership  of  any  firm  or  association,  the 
plaintiffs  may  cause  to  be  served  upon  the  defendant, 

14Jud.  Act.,   ch.   17,    §52;    Comp.  17  Locke  v.  Farley,  41  Mich.  405; 

Laws  1915,   §  12540.  Gordon  v.  Sibley,  59  Mich.  250. 

16  McGowan    v.    Lamb,    66    Mich.  1*  Gordon  v.  Sibley,  59  Mich.  250. 

615. 

16  Gordon  v.  Sibley,  59  Mich.  250. 


§  1  Exceptions  691 

with  a  copy  of  the  declaration  filed  in  the  cause  or  with 
the  process  by  which  the  suit  is  commenced,  an  affidavit 
stating"  that  the  plaintiffs  were  the  persons  comprising 
such  partnership  at  the  time  the  contract  in  question 
was  made  or  the  cause  of  action  accrued;  and  such  affi- 
davit will  be  prima  facie  evidence  of  the  existence  of 
such  partnership  or  association,  unless  the  defendant 
files  with  his  plea  an  affidavit  denying  the  existence  of 
such  partnership  or  association.^® 

EXAMINATION 

See  Witnesses;  Depositions;  Jurt;  Supplementary  Proceedings; 
Garnishment;  Eeferences. 

EXCEPTIONS 

§  1.  Necessity  for. 

§  2.  Eefusal  to  submit  special  questions. 

§  3.  Misconduct  of  counsel, 

§  4.  Findings  where  trial  by  court  without  a  jury. 

§  6.  Exceptions  where  no  ruling. 

§  6.  Time  for. 

§  7.  Insertion  in  bill  of  exceptions. 

Cross-Eeferences:  Bill  of  Exceptions;  Error,  Writ  of;  Case  Made; 
Supreme  Court;  Security  for  Costs  (exception  to  sureties) ;  Replevin 
(exception  to  sureties);  Bail;  Costs;  References. 

§  1.  Necessity  for. 

In  order  to  preserve  a  question  for  review  on  writ  of 
error,  an  exception  is  often  necessary  to  be  taken  to  the 
ruling  of  the  court.  However,  the  necessity  for  excep- 
tions on  the  trial  has  been  to  a  large  extent  dispensed 
with  by  the  Judicature  Act  which  provides  that  **it 
shall  not  be  necessary  in  the  trial  of  any  action  or  pro- 
ceeding in  any  court  of  record,  to  except  to  any  ruling 
or  action  of  the  court,  if  an  objection  thereto  was  duly 
made,  but  an  exception  shall  be  deemed  to  follow  as  a 
matter  of  course,  and  it  shall  not  be  necessary  to  except 
in  any  case  to  the  charge  of  the  court  to  the  jury,  or  to 

19Jud.  Act,  ch.   17,   §48;    Comp. 
Laws  1915,  §12536. 


692  Exceptions  §  1 

the  refusal  of  the  court  to  charge  as  requested;  but  any 
party  considering  himself  aggrieved  by  any  such  ruling, 
action,  charge  or  refusal  to  charge,  may  assign  errors 
the  same  as  if  exception  had  been  made  according  to  the 
practice  heretofore  in  use."  *  A  direction  of  a  verdict  is 
a  ''charge"  within  this  statute,  and  hence  need  not  be 
excepted  to.^  It  will  be  noticed  that  this  statute  says 
that  no  exception  shall  be  necessary  ''in  the  trial"  of 
any  action,  etc.,  provided  an  objection  was  duly  made, 
and  hence  it  is  apparent  that  it  does  not  do  away  with 
tlie  necessity  for  exceptions  before  the  trial  or  after  the 
trial. 

An  order  ruling  on  a  motion  for  a  continuance,  made 
before  the  trial  is  called,  is  not  reviewable  unless  ex- 
cepted to;'  nor  is  an  order  ruling  on  a  motion  to  amend 
the  judgment.*  An  order  denying  a  motion  for  a  new 
trial  must  be  excepted  to  ^  and  if  not  excepted  to  the 
question  as  to  the  sufficiency  of  the  evidence  cannot  be 
inquired  into  in  the  supreme  court  ^  nor  can  the  exces- 
siveness  of  the  verdict.' 

Where  an  exception  during  or  on  the  trial  is  neces- 
sary, the  failure  to  except  is  not  obviated  by  a  motion 
for  a  new  trial  and  an  exception  to  the  order  denying 
the  motion.*    A  motion  for  a  new  trial  does  not  perform 

l.Ju(l.    Act,    ch.    18,    §00;    Comp.  41 1  ;  Maluler  v.  Wax,  192  Mich.  479; 

Laws  1915,   §12(5:52.  Dyer  v.  People's  Ice  Co.,  188  Mich. 

That    no    exception    is    necessary  20."!;     Ilotchkisa    v.    Weinmann-Mat- 

where    request    for    directed    verdict  tliews  Co.,  17.5  Mich.  6.52.     See  also 

non  obstante  veredicto  is  denied  as  Nkw  Tkial. 

expressly    provided    for    by    statute,  6  Dyer    v.    People 's    Ice    Co.,    188 

see  Tri.xl.  M'u-h.  20.''.,  207;  Partridjje  v.  Meeker, 

2  Goodman   v.  Fangert,  204  Mich.  1G9  Mich.  :i03. 

66;    Parsille    v.    Brown,    188    Mich.  7  Sergeant  v.  Grand  Rapids  &  I. 

48.5.  R.  Co.,  198  Mich.  .S85;  Dyer  v.  Peo- 

8 Goldberg  v.  Peerless  Pattern  Co.,  pie's  lee  Co.,  188  Mich.  20.'5. 

197  Mich.  .S62.  8  Degrandchamp    v.    Slepaki,    187 

4  Kahn    v.    Minthnrn,    178    Mich.  Mich.  4.".0 ;  Dykstra  v.  Grand  Ra])ids, 

.'{12.  etc.,  R.  Co.,  1(55  Mich.  1:5;  Conger  v. 

BOreenleaf  v.  Lambert,  192  Mich. 


§  4  Exceptions  693 

the  office  of  supplying  exceptions  not  taken  at  the  trial.* 
Thus,  it  does  not  supply  the  absence  of  exceptions  to 
findings  where  the  trial  is  by  the  court  without  a  jury." 

§  2.  Refusal  to  submit  special  questions. 

It  has  been  held  that  an  exception  must  be  taken  to 
the  refusal  to  submit  to  the  jury  a  special  question," 
and  doubtless  the  new  provision  of  the  Judicature  Act 
does  not  abolish  the  necessity  for  such  an  exception. 

§3.  Misconduct  of  counsel. 

If  an  objection  is  made  during  the  trial  to  miscon- 
duct of  counsel,  and  a  ruling  of  the  court  obtained  there- 
on, it  would  seem  that  no  exception  is  necessary  under 
the  new  provision  of  the  Judicature  Act  already  re- 
ferred to.  However,  there  is  no  decision  of  the  supreme 
court  to  support  this  statement,  and  all  the  decided 
cases,  none  of  which  refer  to  the  provisions  of  the  Judi- 
cature Act,  are  to  the  contrary.^^ 

§  4.  Findings  where  trial  by  court  without  a  jury. 

The  necessity  for  exceptions  to  findings  of  the  court, 
where  the  trial  is  by  a  court  without  a  jury,  as  fixed  by 
statute,  is  stated  in  another  article.  Suffice  it  to  state 
in  this  connection  ^^  that  where  a  case  is  tried  without  a 
jury,  and  no  requests  for  amendments  to  the  findings  are 
made  and  no  exceptions  are  taken  to  the  findings,  neither 
tlie  conclusions  of  fact  or  of  law  in  tl»e  findings 
are  reviewable  on  writ  of  error;  ^*  and  the  findings  of 

Hall,  ir>8  Mieh.  448.     See  also  Fed-  K.  Co.,  165  Mi(-h.   U,  18.     See  also 

eral  Audit  Co.  v.  Sawyer,  196  Mich.  Verdict.s  and  Findinos. 

r>66.  12  See  Error,  Writ  of;  Trial. 

9  Federal    Audit    Co.    v.    Sawyer,  13  See  Verdicts  and  Findino.s. 
196  Mich.  r}66;  Moore  v.  Royal  Oak  14  Cas^earelli    v.    New    York    Cent. 
Lumber  Co.,  171  Mich.  400.  R.  Co.,  202  Mieh.  .'^04. 

10  Federal  Audit  Co.  v.  Sawyer,  See  also  Walker  v.  Village  of 
196  Mich.  .'366;  Moore  v.  Royal  Oak  Brooklyn,  184  Mieh.  520;  Federal 
Lumber  Co.,  171   Mich.  400.  Audit  Co.  v.  Sawyer,  196  Mi.-h.  566. 

11  Dykstra  v.  Grand   Rapids,  etc., 


694  Exceptions  §  4 

fact  are  not  reviewable  in  such  a  case  even  though  the 
order  denying  a  new  trial  expressly  awards  exceptions 
to  the  order  and  also  to  findings  of  fact."  In  order  to 
obtain  a  review  of  the  sufficiency  of  the  evidence  in  a 
case  tried  without  a  juiy,  an  exception  to  the  findings 
of  fact  on  the  ground  that  the  findings  are  against  the 
clear  weight  of  evidence  must  be  filed  in  the  trial 
court.^^  If  parties  submit  a  cause  upon  a  stipulation  of 
facts,  no  exception  is  necessaiy  to  enable  the  supreme 
court  to  decide  whether  the  facts  support  the  judgment." 

§  5.  Exceptions  where  no  ruling. 

An  exception  does  not  preserve  anything  for  review, 
ordinarily,  unless  there  is  a  ruling  which  is  the  subject 
of  the  exception.  For  instance,  it  is  held  in  a  multitude 
of  cases  that  a  mere  exception  to  alleged  improper  argu- 
ment of  counsel  raises  no  question  for  review."  How- 
ever, it  seems  that  where  the  objection  is  to  remarks 
or  prejudicial  conduct  of  the  trial  judge  there  is  no 
chance  for  a  ruling  and  the  only  method  to  preserve  the 
question  for  review  is  by  objection  and  exception,  pro- 
vided an  exception  is  necessaiy.  So  one  does  not  lose 
the  benefit  of  an  exception  merely  because  the  trial  court 
has  failed  to  rule  definitely  upon  the  objection  on  which 
it  is  based,  but  has  permitted  the  case  to  proceed,  sub- 
ject to  the  objection,  reserving  it  for  consideration." 

§  6.  Time  for. 

Generally  it  is  necessary  that  an  exception  be  taken 
at  the  time  when  the  ruling  is  made  and  it  cannot  or- 
dinarily be  taken  thereafter,  except,  of  course  where  the 

15  Cascarelli   v.    New    York    Cent.  18  Wheeler  v.  City  of  Detroit,  127 

E.  Co.,  202  Mich.  304.  Mich.  329,  and  see  Error,  Writ  of. 

16Jud.   Act,   ch.   18,    §15;    Comp.  19  Young  v.  Detroit,  etc.,  E.  Co., 

Laws  1915,  §  12587,  applied  in  Eeese      56  Mich.  430. 
V.  Dyer,  199  Mich.  204. 

17  Kooman  v.  De  Jonje,  186  Mich, 
292. 


Executions  695 

party  for  some  reason  could  not  take  an  exception  at 
that  time.  But  an  exception  need  not  be  taken  at  the 
time  of  the  ruling  where  the  matter  is  held  in  abeyance 
by  the  court,  it  being  sufficient  to  except  when  it  was 
manifest  that  the  ruling  was  not  to  be  remedied.^"  If 
exceptions  are  taken  to  the  findings  of  the  court,  where 
the  trial  is  without  a  jury,  they  must  be  filed  within 
the  four  days  fixed  by  rule  of  court  unless  the  time  has 
been  extended.^^ 

§  7.  Insertion  in  bill  of  exceptions. 

An  exception  to  an  order  denying  a  motion  for  a  new 
trial,  in  order  to  be  reviewable,  must  be  contained  in 
the  bill  of  exceptions,  and  it  is  not  sufficient  that  the 
exception  appears  in  the  record  proper.*^^  So  exceptions 
to  findings  of  fact  and  conclusions  of  law,  where  the 
trial  is  by  the  court  without  a  jury,  must  be  settled  and 
incorporated  in  the  bill  of  exceptions.^^ 

EXECUTIONS 

I,    In  General 

§  1.  Time  when  may  issue. 

§  2.  When  may  be  made  returnable. 

§  3.  Kinds. 

§  4.  Simultaneous  writs  to  different  counties. 

§  5.  Service  by  persons  specially  appointed. 

!J  6.  Against  whom  may  issue. 

S  7.  Duty  of  officers  in  service  of  writ, 

§  8.  Set-off  of  executions. 

§  9.  Service  begun  by  one  and  completed  by  another  officer. 

II.  Execution  Against  Property 

A.  Form  and  Issuance 
§  10.  Form  of  writ. 
§  11.  Indorsement. 

20  Foley  V.  Comstock,  122  Mich.  98,  105.  See  also  Bill  op  Excep- 
349.  TioNS. 

21  Rameau  v.  Valley,  168  Mich.  23  Rameau  v.  Valley,  168  Mich. 
569,  and  see  Verdicts  and  Findings.  569. 

22  In  re  Keene  's  Estate,  189  Mich. 


696  Executions 

§  12.  When  property  bound  by  writ. 

§  lo.  Alias  and  pluries  writs. 

S  14.  Sequential  execution  in  special  cases. 

B.  Property  Subject  to  Levy 
§  15.  In  general. 
§  16.  Coin  and  other  money. 
S  17.  Goods  mortgaged  or  pledged. 
S  18.  Mortgagee 's  interest. 

S  19.  Property  held  in  trust  and  other  equitable  estates. 
§  20.  Partnership  property. 
§  21.  Growing  crops. 

§  22.  Manuscripts,  copyrights,  books,  etc. 
§  23.  Choses  in  action. 
§  24.  Corporate  shares. 
§  25.  Property  devoted  to  public  use. 
S  26.  Property  assigned  for  benefit  of  creditors. 
§  27.  Property  of  deceased  person. 
§  28.  Franchises. 

§  29.  Property  in  custody  of  the  law, 
§  30.  Real  property. 

§  31.  Equity  of  redemption. 

S  32.  Leasehold  interests. 

§  33.  Property  held  jointly. 

C.  Levy  and  Lien 

S  34.  SuflSciency  of,  effect  and  time  for. 

§  35.  Levy  on  mortgaged  goods. 

§  36.  Duty  of  officer  in  caring  for  jiroperty  before  sale. 

$  37.  Effect  of  and  remedy  for  excessive  levy. 

§  38.  When  levy  may  be  made  and  service  of  writ  completed. 

S  39.  Indemnity  bonds. 

§  40.  Priority  of  executions. 

§  41.  Notice  of  levy  on  real  estate. 

§  42.  Effect  on  leasehold  interests. 

8  43.  How  long  levies  on  land  endure. 

§  44.  Bill  in  aid  of  levy. 

S  45.  Waiver  or  abandonment  of  levy. 

§  46.  Claims  of  third  persons  to  property  levied  on. 

D.  Sale 
§  47.  In  general. 
§  48.  Time  of  sale. 
§  49.  Place  of  sale. 
S  50.  Notice  of  sale. 

§  51.  Postponement  or  adjournment  of  sale. 
§  52.  Sale  of  perishable  property. 
§  53.  How  sale  conducted. 


Executions  697 

§  54.  Sale  of  real  estate  in  parcels. 

§  55.  Certificate  of  sale. 

§  56.  Title  and  rights  of  purchaser. 

§  57.  How  purchaser  of  lands  protected  against  loss  through  irregularity  of 

judgment  or  sale. 

§  58.  Disposition  of  surplus  moneys. 

S  59.  When  property  to  be  re-sold, 

§  60.  Setting  aside  sale. 

S  61.  Irregularities  affecting  validity  of  sale, 

E.  Return 

§  62,  Necessity  for,  sufficiency  of,  and  who  may  make. 

§  63,  Time  for  making, 

§  64.  Setting  aside. 

S  65.  Conclusiveness. 

§  66.  Effect  of  insufficiency, 

F.  Redemption 
§  67.  Within  one  year. 

§  68.  By  whom  made. 

S  69.  By  part  owners,  heirs  or  devisees. 

S  70. By  owners  of  undivided  shares. 

S-71.  Redemption  of  leaseholds. 

§  72.  Effect  of  redemption  on  sale  and  certificate  of  sale. 
§  73.  After  one  year  and  within  fifteen  months. 

§  74.  By  second  or  other  creditors. 

§  75.  Right    of    plaintiff    to    acquire   purchaser 's    interest    except    as 

creditor. 
§  76.  To  whom  payment  by  creditors  to  be  made  and  effect  of  payment. 
§  77.  Evidence  of  right  to  acquire  purchaser's  interest. 
§78.  Redeeming  and   acquiring  purchaser's  rights   in   mortgaged  premises. 

G.  Sheriff 's  Deed 

8  79.  Right  to,  necessity  for,  etc. 

8  80,  Time  for  taking  and  recording  conveyance. 

H.  Payment  and  Discharge 
S  81.  Payment. 
§  82.  Certificate  of  satisfaction, 

III.  Body  Executions 

§  83.  When  proper,  time  for  and  effect  of. 

§  84.  Form  of  writ. 

S  85.  Service  of  writ. 

S  86.  Bond  for  liberty  of  jail  limits, 

S  87.  Return  of  writ. 

S  88.  Proceedings  upon  return  of  not  found. 


698  Executions  §  1 

§  89.  Expense  of  keeping  person  in  jail. 
§  90.  Discharge  as  poor  debtor. 

Cross-references:  Supplementary  Proceedings;  Garnishment  (execu- 
tion against  garnishee);  Attachment;  Exemptions  (property  exempt  by 
statute);  Homestead  (exemption  of) ;  Replevin  (executions  in  actions  of) ; 
Ejectment  (execution  in  actions  of);  Judgment  (execution  as  satisfaction 
of) ;  Stay  of  Proceedings. 

I.  In  General 

§  1.  Time  when  may  issue. 

If  the  judgment  in  a  cause  be  not  set  aside,  arrested 
or  reversed,  tlie  next  step  is  the  execution  of  it,  or,  in 
other  words,  the  putting  of  the  sentence  of  the  law  into 
effect.! 

In  this  state,  the  statute  provides  that,  whenever  a 
judgment  has  been  rendered  in  a  court  of  record,  ex- 
ecution to  collect  it  may  be  issued  to  the  sheriff  or  other 
proper  officer  of  any  county  of  the  state.^  At  the  com- 
mon law,  an  execution  could  issue  immediately  after 
final  judgment  was  entered,^  and,  if  not  issued  within  a 
year  and  a  day  thereafter,  the  presumption  arose  that 
the  party,  by  reason  of  the  satisfaction  of  the  judgment 
or  otherwise,  was  no  longer  entitled  to  execution,  and 
he  was  thereby  left  to  seek  his  remedy  by  an  action  on 
the  judgment,  until  the  statute  of  Westminster  II,  after 
which  he  might  have  a  scire  facias  and  require  his  ad- 
versary to  show  cause  why  an  execution  should  not 
issue.* 

In  this  state,  the  time  after  final  judgment  for  issuing 
execution  is  not  expressly  prescribed  either  by  the 
statute  or  the  rules.  It  may  issue  at  the  same  term  at 
which  the  judgment  was  rendered  or  afterwards,  in  va- 
cation or  in  term,*  but  never,  it  is  hardly  necessary  to 

13  Cooky's  Bl.  Comm.  412.  6  People  v.  Clerk  of  Bay  County 

2Jud.    Act,    ch.    23,    §1;     Comp.  Circuit  Court,  14  Mich.  169. 

Laws  1915,  §  12816.  It    may    be    issued    in    vacation. 

8  Stevens  v.  Manson,  87  Me.  436.  Christler  v.  Locke,  103  Mich.  86. 
4  Shirley  v.  Wright,  1  Salk.  273. 


§  1  Executions  699 

say,  until  any  order  staying  proceedings,  if  any,  has 
become  inoperative.  The  fact  that  a  writ  of  error  has 
issued  to  remove  the  case  to  the  supreme  court  will  not 
prevent  the  prevailing  party  from  causing  execution 
to  issue,  unless  the  statutory  stay  bond  has  been  filed,® 
but  the  court  may  stay  the  execution  for  twenty  days 
after  the  entry  of  judgment  for  the  settlement  of  a  bill 
of  exceptions.'' 

In  this  state,  the  rule  of  the  common  law  requiring 
the  issuance  of  an  execution  within  a  year  and  a  day  does 
not  prevail,  but  it  is  held  that  the  execution  must  issue, 
if  at  all,  within  ten  years  from  the  entry  of  the  judg- 
ment, for  the  reason  that  an  action  on  the  judgment  is 
barred  after  that  time  and  an  execution  ought  not  to 
issue  on  a  judgment  upon  which  an  action  is  barred.® 

This  rule  is  a  general  one  and  applies  to  suits  in  which 
property  has  been  attached  as  well  as  to  others,  but  it 
is  important  to  observe  that,  in  attachment  suits,  the 
lien  of  the  attachment  will  be  lost  if  there  be  any  un- 
reasonable delay  in  taking  out  execution ;  ^  and  where 
the  writ  of  attachment  has  not  been  personally  served 
upon  the  defendant,  so  that  the  execution  can  be  levied 

6  Jud.  Act,  ch.  50,  §  2 ;  Comp.  But  where  execution  is  issued  and 
Laws  1915,  §  13737 ;  Douglass  v.  levied  on  land  within  the  ten  years, 
Manistee  Circuit  Judge,  42  Mich.  it  should  not  be  set  aside  or  the  sale 
495 ;  Castor  v.  Allegan  Circuit  restrained  because  the  ten  years  ex- 
Judge,  54  Mich.  318.  inre  before   a   sale   is  made,   where 

7Cir.  Ct.  Rule  66,   §1.     See  also  the    five    years    after    the    levy,    as 

Peterson    v.    Wayne    Circuit    Judge,  fixed  by  statute  within  which  a  sale 

108  Mich.  608.  must  be  made  and  after  which  the 

Time  for  stay,  see  Hatch  v.  Wash-  execution  lien  ends,  has  not  expired, 

tenaw   Circuit   Judge,   200   Mich.    1,  Moshcr  v.  Borden,  201  Mich.  106. 

and  also  Stay  of  Proceedings.  9  Trowbridge  v.  Bullard,  81  Mich. 

8  Jud.   Act,   ch.   9,    §  13,   subd.   1 ;  451  ;  Grand  Rapids  Chair  Co.  v.  Run- 

Comp.  Laws  1915,  §  12323,  subd.  1;  nels,  77  Mich.  104;  Bushey  v.  Raths, 

People  V.  Wayne  Circuit  Judge,  37  45  Mich.  181;  Geiges  v.  Greiner,  68 

Mich.  287;    Jerome  v.  Williams,  13  Mich.  153. 
Mich.    521;    Ludeman    v.    Hirth,    96 
Mich.  17. 


700  Executions  §  1 

only  upon  the  property  attached,  the  avoidance  of  un- 
reasonable delay  is  of  much  greater  importance.  The 
question  of  what  amounts  to  unreasonable  delay  de- 
pends largely  upon  the  special  circumstances  of  the  case, 
but,  in  general,  it  should  be  said  that  a  distinction  is 
made  between  those  cases  in  which  only  real  estate  has 
been  attached  and  those  in  which  the  levy  of  attach- 
ment has  been  made  upon  personalty;  for  the  attach- 
ment of  real  estate  does  not  interfere  at  all  with  the 
defendant's  possession,  while  the  attachment  of  per- 
sonalty divests  him  of  it."  It  has  been  held  that  a  de- 
lay of  two  months,*^  or  even  eight  months,^^  in  levying 
execution  in  case  of  attachment  of  real  estate  was  not 
unreasonable;  while  slight  delay,  in  the  absence  of  pecu- 
liar circumstances,  would  be,  in  case  of  the  attachment 
of  personalty. 

An  execution  cannot  be  considered  as  issued  until  it 
is  placed  in  the  hands  of  an  officer  for  service.^' 

§  2.  When  may  be  made  returnable. 

Execution  issued  upon  any  judgment  rendered  by  a 
court  of  record  in  this  state,  or  upon  any  transcript  of  a 
justice 's  judgment,  may  be  made  returnable  not  less  than 
twenty,  nor  more  than  ninety  days  from  the  date  there- 
of." 

§3.  Kinds. 

An  execution  may  be  either  (1)  against  the  goods  and 
chattels,  lands  and  tenements  of  the  party  against  whom 
judgment  has  been  recovered,  or  (2)  against  the  body 
of  such  party,  in  the  cases  authorized  by  law." 

lOLant    V.    Morgan's    Adm'r,    43  14  Jud.  Act,  ch.  23,  §§  1,  2;  Comp. 

U.   S.  App.  623.  Laws    1915,    §§12816,    12817;    First 

11  Geiges  v.  Greiner,  68  Mich.  153.       Nat.  Bank  v.  Dwight,  83  Mich.  189. 

IZLant    V.    Morgan's    Adm'r,    43  16  Jud.    Act,    ch.    23,    §3;    Comp. 

V.  S.  App.  623.  Laws  1915,  §  12818. 

13  Peterson  v.  Wayne  Circuit 
Judge,  108  Mich.  608;  First  Nat. 
Bank  v.  Dwight,  83  Mich.  189. 


§  4  Executions  701 

The  former  is  called  a  "fieri  facias,"  from  the  words 
in  which,  when  the  writs  were  in  Latin,  the  sheriff  was 
commanded  "quod  fieri  facias  de  bonis,"  that  he  cause 
to  be  made  of  the  goods  and  chattels  of  the  defendant 
the  sum  or  debt  recovered.  At  common  law,  a  writ  of 
fieri  facias  atfected  only  the  goods  and  chattels,  and  not 
the  lands  and  tenements,  of  the  defendant,^^  but  now,  by 
statute,  as  just  stated,  it  applies  to  both  forms  of  prop- 
erty. 

The  execution  against  the  body  is  called  a  "capias  ad 
satisfaciendum,"  and  authorizes  the  arrest  of  the  de- 
fendant and  his  imprisonment  until  the  satisfaction  of 
the  demand  against  him.^' 

§  4.  Simultaneous  writs  to  different  counties. 

Executions,  whether  against  the  body  or  against  the 
property  of  a  person,  for  the  collection  of  judgments  of 
courts  of  record  in  this  state,  may  be  issued  at  the  same 
time  to  sheriffs  of  different  counties  and  enforced  there- 
in by  them,  but  no  execution  against  the  body  can  issue 
while  there  is  an  execution  against  the  property  of  the 
defendant  not  returned,  nor  can  an  execution  against  his- 
property  be  issued  wiiile  there  is  an  execution  against 
his  body  unretunied,  unless  by  the  order  of  the  court 
which  rendered  the  judgment.  In  case  levies  are  made 
on  more  than  one  execution  so  issued,  sale  can  be  made 
on  only  one  execution  at  a  time  and  under  the  direction 
of  the  plaintiff" 's  attorney;  and  no  more  sales  of  property 
can  be  made  than  are  necessary  to  satisfy  the  judgment." 

It  is  to  l)e  observed,  liowever,  tliat  the  statute  permit- 
ting executions  to  be  issued  at  the  same  time  to  sheriffs 
of  different  counties  specifies  only  those  for  the  collec- 
tion of  judgments,  so  that  a  writ  of  return  upon  a  judg- 

16  3  Coolcy'a  Bl.  Comni.  417.  Coiiii).   Laws   1915,   §S  12825,  12826; 

17  3  Coolcy's  Bl.  Comni.  417.  Sink   v.   Oceana   Circuit   Judge,   146 
ISJud.    Act,    ch.    23,    §§10,    11;       Mich.   121. 


702  Executions  §  4 

ment  in  replevin  is  governed  by  the  common-law  rule, 
which  allows  the  writ  to  be  issued  only  to  the  sheriff  of 
the  county  in  which  the  judgment  was  rendered.'^® 

§  5.  Service  by  persons  specially  appointed. 

It  is  provided  by  statute  that  the  judge  of  any  circuit 
court  of  this  state  may,  in  any  suit  or  proceeding  com- 
menced or  pending  therein,  on  the  application  of  any 
party  thereto  by  petition  signed  by  such  party  or  by  his 
attorney  or  agent,  duly  verified,  showing  the  facts,  ap- 
point some  disinterested  person  to  serve  any  process  or 
other  papers,  original  or  final,  or  to  do  any  act  therein 
which  the  sheriff  by  law  might  do  in  the  cause,  in  cases 
where  the  sheriff  and  coroners  of  the  county  are  parties 
or  interested  or  incapacitated  to  act.^° 

Such  appointment  is  required  to  be  in  writing  under 
the  hand  of  the  judge  and  filed  in  the  cause.^^  The  per- 
son so  appointed  will  have  the  same  power  and  may  pro- 
ceed in  the  same  manner  as  is  prescribed  for  sheriffs  in 
the  performance  of  like  duties.  The  fees  payable  to  him 
are  the  same  as  those  payable  to  sheriffs  for  like  services. 
Such  persons  so  designated  and  receiving  the  process  or 
other  papers,  original  or  final,  is,  in  respect  to  them, 
deemed  a  coroner  of  the  county,  and  is  liable  to  all  the 
provisions  of  law  respecting  sheriffs  so  far  as  they  are 
applicable.^^ 

The  judge  may,  in  his  discretion,  require  the  person  so 
appointed,  before  acting  under  the  appointment,  to  give 
a  bond  to  the  people  of  the  state  in  such  penal  sum,  and 
with  such  surety  or  sureties,  as  the  judge  may  approve, 
conditioned  for  the  faithful  performance  and  execution 
by  him  of  his  duties  in  the  case,  without  fraud,  deceit  or 

WRathbun    v.    Eanney,    14   Mich.  21  Jud.   Act,   ch.  13,   §23;    Comp, 

382.  Laws  1915,  §  12426. 

20  Jud.  Act,   ch.   13,   §23;    Comp.  22  Jud.    Act,    ch.    13,    §§23,    24; 

Laws  1915,  §  12426.  Comp.  Laws  1915,  §§  12426,  12427. 


§  6  Executions  703 

oppression,  and  for  the  payment  of  all  moneys  that  may 
come  into  his  hands  by  virtue  of  the  appointment.''^ 

§  6.  Against  whom  may  issue. 

As  a  general  rule,  an  execution  may  issue  against  the 
person  or  persons  against  whom  judgment  has  been  ren- 
dered, but  not  against  a  part  of  them  only,  nor  against 
any  person  not  a  party  to  the  judgment,  it  being  a  gen- 
eral requirement  that  the  execution  must  conform  to  the 
judgment.^*  Where  judgment  has  been  rendered  against 
two  or  more  persons  and  one  of  them  dies,  the  execution 
should,  in  order  to  conform  to  the  judgment,  be  issued 
in  form  against  all,  but  it  can  be  levied  only  upon  the 
property  of  the  survivor  or  survivors.''^  Execution  may 
issue  against  a  private  corporation,  whether  domestic  or 
foreign,^®  a  married  woman  ^"^  or  a  lunatic.^'  And  when- 
ever any  person  becomes  surety  for  costs  for  another  in 
any  court  in  this  state,  whether  such  security  be  required 
by  law  to  be  given  or  be  required  by  an  order  of  the 
court,  in  case  the  defendant  in  the  action  recovers  final 
judgment  for  costs  against  the  plaintiff,  judgment  may 
be  entered  immediately  and  in  the  same  suit  as  well 
against  the  surety  as  against  the  plaintiff,  and  execution 
may  issue  against  the  surety  in  the  same  manner  as  if  he 
himself  had  been  a  party  to  the  suit.^® 

Execution  for  the  collection  of  a  money  judgment  is 
forbidden  by  statute  to  issue  either  against  the  body  or 
against  the  goods  and  chattels,  lands  and  tenements  of 

28Ju(i.  Act,  ch.   13,    §23;    Comp.  26  Gardner  v.  Mobile,  etc.,  K.  Co., 

Laws  1915,  §  12426.  102    Ala.   635;    Overton  Bridge   Co. 

24Penoyer  v.  Brace,  1  Ld.  Eaym.  v.  Means,  33  Neb.  857. 

244.  27  Baldwin    v.    Kimmel,    16    Abb. 

Execution  against  partnership,  see  Pr.  (N.  Y.)  358. 

Jud.  Act,  ch.  23,  §  13 ;  Comp.  Laws  28  Noel    v.    Modern    Woodmen    of 

1915,  §  12828.  America,  61  111.  App.  597. 

26Beed    v.   Garfield,   15   111.   App.  29  Jud.    Act,    ch.    22,    §4;    Comp. 

290.  Laws  1915,  §  12794. 


704  ExEcuTioxs  §  6 

any  executor,  administrator,  heir,  devisee  or  legatee,  ex- 
cept in  the  cases  specially  provided  by  law.^" 

When  a  judgment  has  been  recovered  against  a  county 
or  the  board  of  supervisors  of  a  county,  or  against  any 
county  officer  in  an  action  prosecuted  by  or  against  him 
in  his  name  of  office,  no  execution  can  issue  upon  such 
judgment.  The  judgment  must  be  collected  as  other 
county  charges,  and,  when  so  collected,  will  be  paid  by 
the  county  treasurer  to  the  person  to  whom  it  has  been 
adjudged,  upon  tlie  delivery  of  a  proper  voucher  there- 
for.'^ And  whenever  a  judgment  has  been  recovered 
against  a  township,  village  or  city,  or  against  the  trus- 
tees or  common  council  or  against  any  other  officers  there- 
of, in  any  action  prosecuted  by  or  against  them  in  their 
name  of  office,  no  execution  can  be  issued  upon  such 
judgment ;  but  the  amount  of  the  judgment,  together  with 
the  costs  and  interest,  will  be  assessed  upon  the  taxable 
property  of  the  township,  city  or  village  in  the  manner 
specifically  pointed  out  by  the  statute.'^  The  same  is 
true  also  where  a  judgment  has  been  recovered  against 
a  school  district.®' 

§  7.  Duty  of  officers  in  service  of  writ. 

The  sheriff  or  other  officer  to  whom  an  execution  is  de- 
livered should,  upon  receipt  of  it,  indorse  upon  it  the 
year,  month,  day  and  hour  of  the  day  when  he  received 
it.  This  is  a  duty  imposed  by  the  statute  for  the  purpose 
of  enabling  the  question  of  priority  among  several  ex- 
ecutions, in  certain  cases  where  such  priority  depends 
upon  the  order  in  which  they  were  received  by  the  officer, 
more  easily  and  certainly  to  be  determined.'*    Such  in- 

aOJiul.    Act,    eh.    2."?,    §4;    Comp.  33  Jud.  Act,  fh.  24,  §§  8-12;  Comp. 

Laws  1915,   §  12819.  Laws  1915,  8§  12973-12977. 

31Jud.    Apt,    eh.    24,    §7;    Cnm().  34  Jud.    Aet,    ch.    2?,,    S5;    Comp. 

Laws  1915,  §  12972.  Laws  1915,  §  12820. 

32.1ud.  Act,  ch.  24,  §S  5,  6;  Com].. 
Laws  1915,  §§  12970,  12971. 


§  8  Executions  705 

dorsement  may  also  have  an  important  bearing  in  case 
the  conduct  of  the  officer  in  the  service  of  the  execution 
should  at  some  future  time  be  brought  into  question. 
But  the  statute  is  not  mandatory  and  the  failure  of  the 
officer  to  make  the  indorsement  in  no  respect  nullifies  his 
proceedings  thereunder.^* 

When  an  officer  has  received  an  execution,  if  it  be  fair 
upon  its  face,  it  is  his  duty  to  serve  it  in  obedience  to  its 
commands,  either  by  taking  the  body  of  the  defendant 
or  seizing  his  property,  as  the  case  may  be,  in  the  man- 
ner and  under  the  limitations  prescribed  by  law,  as  will 
be  presently  explained.  The  officer  is  protected  from 
liability  in  seizing  property  under  an  execution  without 
regard  to  anterior  defects,  if  the  process  be  fair  upon  its 
face  and  apparently  issue  from  a  court  having  jurisdic- 
tion of  the  subject-matter,^^  even  though  he  has  knowl- 
edge of  the  existence  of  such  defects.^'' 

§  8.  Set-off  of  executions. 

Executions  between  the  same  parties  may  be  set  off, 
one  against  the  other,  if  required  by  either  party.^®  When 
one  of  the  executions  has  been  delivered  to  an  officer  for 
service,  the  debtor  therein  may  deliver  his  execution  to 
the  same  officer,  and  it  thereupon  becomes  the  duty  of 
the  officer  to  apply  it  to  the  satisfaction  of  the  first  ex- 
ecution and  make  an  indorsement  of  such  application 
upon  each  of  the  executions.     The  balance  due  on  the 

SSShepard  v.   Schrutt,   163  Mich.  bull,  16  Mich.  228;   Adams  v.  Hub- 

485.  bard,  30  Mich.  104;  Gidday  v.  With- 

The    omission    may    be    cured    by  erspoon,    35    Mich.    368;    Miller    v. 

amendment.     Forsyth  v.  Washtenaw  Hahn,  116  Mich.  607;  Grand  Kapids 

Circuit  Judge,   180   Mich.  633.  Brewing  Co.  v.  Pettis,  159  Mich.  679. 

36  Watkins   v.    Wallace,    19    Mich.  37  Wall  v.  Trumbull,  16  Mich.  228 ; 

57;    People    v.    Eix,    6    Mich.    144;  Bird  v.  Perkins,  33  Mich.  28;  Foster 

Michels  v.  Stork,  44  Mich.  2;  Dunn  v.  Wiley,  27  Mich.  244. 
V.  Gilman,  .34  Mich.  256;  Ortman  v.  38  Jud.    Act,   ch.   23,   §15;    Comp. 

Greenman,    4    Mich.    291;     Bird    v.  Laws   1915,   §12830. 
Perkins,  33  Mich.  28;  Wall  v.  Trum- 
1  Abbott— 45 


706  Executions  §  8 

larger  execution  may  then  be  collected  and  paid  in  the 
same  manner  as  if  there  had  been  no  set-off.'®  But  such 
set-off  is  not  allowed  when  the  creditor  in  one  of  the  ex- 
ecutions is  not  the  debtor  in  the  other  in  the  same  ca- 
pacity and  trust,  or  when  the  sum  due  on  the  first  execu- 
tion has  been  lawfully  and  in  good  faith  assigned  to  an- 
other person  before  the  creditor  in  the  second  execution 
became  entitled  to  the  sum  due  on  it,  or  when  there  are 
several  creditors  in  one  execution  and  the  sum  due  on 
the  other  is  due  from  part  of  them  only,  or  when  there 
are  several  debtors  in  one  execution  and  the  sum  due  on 
the  other  is  due  to  a  part  of  them  only,  nor  is  it  allowed 
as  to  so  much  of  the  first  execution  as  is  due  to  the  at- 
torney in  that  suit  for  his  taxable  fees  and  disburse- 
ments.*" 

§  9.  iService  begfun  by  one  and  completed  by  another  of- 
ficer. 
When  an  officer  has  begun  to  serve  an  execution  and 
dies  or  becomes  incapable  of  completing  the  service,  it 
may  be  completed  by  any  other  officer  who  might  by  law 
have  executed  the  writ  if  it  had  been  originally  deliv- 
ered to  him;  and,  if  the  first  officer  has  not  made  a  cer- 
tificate of  his  doings,  the  second  officer  should  certify 
whatever  he  finds  to  have  been  done  by  the  first  and  add 
a  certificate  of  his  own  doings  in  completing  the  service.*^ 
A  sheriff'  may,  therefore  make  a  sale  of  property  seized 
under  execution  by  his  predecessor.*^  But  a  sheriff  and 
his  under  sheriff  and  deputy  sheriffs  may  execute  all 
process  in  their  hands  at  the  expiration  of  the  term  for 

39Jud.   Act,   ch.   23,    §16;    Comp.  40  Jud.   Act,   eh.   23,    §17;    Comp. 

Laws  1915,  §  12831.  Laws   1915,   §  12832. 

Refusal  of  .judge  to  compel  sheriff  «  Jud.   Act,   ch.   23,   §  21 ;    Comp. 

to  make  a  set-off  is  not  reviewable  Laws  1915,  §  12836. 

on  mandamus,  but  relief  may  be  ob-  42  Taylor  v.   Boardman,  23  Mich, 

tained    in    equity.      Lyon    v.    Smith,  317. 
66  Mich.  676. 


§  10  Executions  707 

which  the  sheriff  was  elected,  and  the  execution  of  which 
had  been  begun  by  them  respectively;  and,  in  case  of  a 
vacancy  in  the  office  of  sheriff,  every  deputy  in  office  un- 
der him  may  execute  any  writ  or  process  in  his  hands  or 
in  the  hands  of  such  sheriff  at  the  time  the  vacancy  hap- 
pened, and  has  the  same  authority,  and  is  under  the  same 
obligation,  to  serve,  execute  and  return  it  as  if  the  sheriff 
had  continued  in  office." 

II.  Execution  Against  Property 

A.  Form  and  Issuance 

§  10.  Form  of  writ. 

The  style  of  the  fieri  facias  should  be  *'In  the  Name 
of  the  People  of  the  State  of  Michigan. ' '  The  writ  should 
be  directed  to  the  proper  officer,  usually  the  sheriff  of 
the  county  into  which  it  is  to  be  sent,  should  be  made 
returnable  on  some  specified  day  not  less  than  twenty 
nor  more  than  ninety  days  from  the  time  of  its  issue, 
should  have  the  proper  teste,  should  be  signed  by  the 
clerk  or  deputy  clerk  and  by  the  attorney  for  the  party 
causing  it  to  issue,  and  should  be  sealed  with  the  seal 
of  the  court  from  which  it  emanates.  It  should  also  iden- 
tify and  be  in  substantial  conformity  with  the  judgment 
upon  which  it  is  based,  showing  by  what  court  it  was 
rendered,  the  names  of  the  parties  and  the  amounts  re- 
spectively of  the  debt  or  damages  and  the  costs.  The 
names  of  all  the  parties  should  be  set  forth,  even  though 
some  of  them  have  died  since  the  rendition  of  the  judg- 
ment. 

A  mistake,  however,  in  regard  to  some  of  the  foregoing 
matters  will  not,  according  to  the  weight  of  authority 
and  the  better  opinion,  render  the  writ  absolutely  void, 
but  at  the  most  merely  voidable,  and  to  remedy  it  the 

43Jud.   Act,   eh.   13,    §39;    Conip. 
Laws  1915,  §  12442. 


708  Executions  §  10 

court  will  permit  an  amendment.**  Thus,  the  want  of  a 
seal  does  not  render  the  writ  void,  and  the  seal  may  be 
supplied  on  motion  to  amend.*^  So  the  writ  may  be 
amended  as  to  the  name  of  the  judge  in  whose  name  it 
is  tested,*®  or  as  to  the  name  of  the  county  to  the  sheriff 
of  which  it  is  directed,*'  and  an  amendment  may  be  per- 
mitted to  specify  a  proper  return  day.*'  So  while  a  sub- 
stantial conformity  with  the  judgment  is  an  essential, 
a  slight  variance  in  the  names  of  the  parties  may  be  elim- 
inated by  amendment;  *®  and  since  in  this  state  it  is  usual 
and  proper,  if  not  necessary,  to  indorse  the  title  of  the 
court  and  cause  and  other  details  upon  process,  which, 
when  put  on,  forms  a  part  of  tbe  process  for  the  purpose 
of  identification,  the  omission  of  the  name  of  one  of  the 
parties  from  the  body  of  the  writ  will  not  render  the  writ 
insufficient,  even  without  amendment,  if  it  be  properly 
indorsed  with  the  title  of  the  cause.*" 

The  writ  must  contain  a  proper  command  to  the  officer. 
To  authorize  the  sale  of  real  estate,  it  must  command  the 
officer  to  whom  it  is  directed  that,  of  the  goods  and  chat- 
tels of  the  person  against  whom  it  issues,  in  the  county 
of  such  officer,  he  cause  to  be  made  the  debt,  damages  or 

44  An  execution  issued  on  a  ,iuflg-  amended   judgment,   rights  accruing 

ment   in   assumpsit,   with   a   general  under  the  execution  by  levy  will  be 

command  to  levy,  is  not  invalid  be-  saved.       Seymour     v.     Bruske,     140 

cause  reciting  the  action  was  to  en-  Mich.  244. 

force  a  mechanic 's  lien  and  describ-  45  Arnold  v.  Nye,  23  Mich.  286. 

ing   the   property    against   which    it  46  Ross  v.  Luther,  4  Cow.  (N.  Y.) 

was  asserted.     Allured  v.  Voller,  107  158. 

Mich.  476.  47Walden    v.    Davison,    15   Wend. 

An  execution  is  not  void  because  (N.  Y.)  575. 

it  commands  the  officer,  in  addition  48  Goode  's  Adm  'r  v.  Miller,  78  Ky. 

to  the  legal  costs,  to  collect  a  certain  235 ;     Cramer     v.     Van    Alstyne,    9 

amount  for   the  execution,  although  Johns.   (N.  Y.)   386. 

the   latter  is  unwarranted,  since  it  49  Cawthorn    v.    Knight,    11    Ala. 

will  be  treated  as  surplusage.     Hoi-  579. 

lister  V.  Giddings,  24  Mich.  501.  50  McGuire  v.   Galligan,   53  Mich. 

Where  an  execution  is  recalled  to  453. 
reform   it  so  as  to  comply  with  an 


§  10  Executions  709 

other  sum  of  money  and  costs  for  which  the  judgment 
was  rendered,  and,  if  sufficient  goods  and  chattels  cannot 
be  found,  that  then  he  cause  the  amount  of  such  judg- 
ment to  be  made  of  the  real  estate  of  the  person  against 
whom  the  judgment  was  rendered  within  such  county.^^ 
It  is  the  duty  of  the  officer  to  obey  this  command  and  to 
proceed  against  any  goods  and  chattels  to  be  found  with- 
in his  county  before  resorting  to  real  estate;  but  it  will  be 
presumed  that  he  has  done  so,  and,  therefore,  when  he  has 
seized  real  estate,  it  is  not  essential  that  he  recite  that 
sufficient  goods  and  chattels  could  not  be  found.^'^ 

Form  of  Fieri  Facias  for  Plaintiff  in  Assumi«it 

The  Circuit  Court  for  the  County  of  ...... 

In  the  Name  of  the  People  of  the  State  of  Michigan. 
To  the  Sheriff  of  the  County  of ,  Greeting: 

We  command  you  that  of  the  goods  and  chattels  of  C.  D.,  defendant,  in 

your  county,  you  cause  to  be  made  the  sum  of dollars,  which  A.  B. 

lately  in  the  circuit  court  for  the  county  of recovered  against  the 

said  defendant,  for  his  damages  which  he  had  sustained,  as  well  by  reason 
of  the  not  performing  certain  promises  and  undertakings  before  then  made 
by  the  said  defendant  to  the  said  plaintiff  as  for  the  costs  and  charges  by 
the  said  plaintiff  about  his  suit  in  that  behalf  expended,  whereof  the  said 
defendant  is  convicted,  as  appears  of  record  in  said  court;  and  if  sufficient 
goods  and  chattels  cannot  be  found  within  your  county,  that  then  you 
cause  the  damages  and  costs  aforesaid  to  be  made  from  the  real  estate  of 
the  said  defendant  within  your  county,  and  have  you  that  money  before 

the  circuit  court  aforesaid  on  the   day  of   ,  A.  D ,  to 

render  unto  the  said  plaintiff  for  his  damages,  costs,  and  charges  aforesaid; 
and  have  you  then  and  there  this  writ. 

Witness,  Hon.  J.  S.,  circuit  judge,  at ,  this day  of , 

A.  D 

C.  K., 

J.  K.,  Attorney  for  Plaintiff.  Clerk. 

Form  of  Fieri  Facias  for  an  Executor  or  Administrator  Upon  Judgment 

Recovered  by  Decedent 

In  the  Name  of  the  People  of  the  State  of  Michigan. 

To  the  Sheriff  of  the  County  of ,  Greeting: 

We  command  you  that  of  the  goods  and  chattels  of  C.  D.,  defendant,  you 
cause  to  be  made dollars,  which  A.  B.,  plaintiff,  in  his  lifetime,  lately 

51Jud.   Act,   ch.   23,   §12;    Comp.  52  Johnson    v.    Crispcll,    39    Mich. 

Laws  1915,  §  12827.  82;  Atwood  v,  Bearss,  45  Mich.  469. 


710  Executions  |  10 

in  our  circuit  court  for  the  county  of recovered  against  him  for  hia 

damages  which  he  had  sustained,  as  well  by  reason  of  the  not  performing 
certain  promises  and  undertakings  then  lately  made  by  the  said  defendant 
to  the  said  plaintiff  as  for  the  costs  and  charges  by  the  said  plaintiff  about 
his  suit  in  that  behalf  expended  (or  as  the  case  may  be,  according  to  the 
form  of  the  action),  whereof  the  said  defendant  is  convicted,  as  appears  to 
us  of  record ;  and,  if  suflScient  goods  and  chattels  of  the  said  defendant  can- 
not be  found  in  your  county,  that  you  then  cause  the  damages  and  costs 
aforesaid  to  be  made  of  the  real  estate  of  the  said  defendant  within  your 
county;  and  whereupon  it  is  considered  in  our  said  circuit  court  that  E.  F., 
executor  of  the  last  will  and  testament  of  the  said  A.  B.,  deceased  (or,  ad- 
ministrator of  all  and  singular  the  goods,  chattels,  rights,  and  credits 
which  were  of  the  said  A.  B.,  deceased,  at  the  time  of  his  death,  who  died 
intestate),  have  execution  against  the  said  defendant,  as  further  appears  to 
us  of  record;  and  have  you  that  money  before  our  said  circuit  court  at 
,  on  ,  to  render  unto  the  said  E.  F.,  executor  (or,  adminis- 
trator) as  aforesaid ;  and  have  you  then  and  there  this  writ. 
Witness,  etc. 

rorm  of  Fieri  Facias  for  Plaintiff  on  Transcript  of  Judgment  of  Justice 

of  the  Peace 

In  the  Name  of  the  People  of  the  State  of  Michigan. 
To  the  Sheriff  of  the  County  of ,  Greeting : 

We  command  you  that  of  the  goods  and  chattels  of  C.  D.,  defendant,  in 

your  county,  you  cause  to  be  made   dollars,  which  A.  B.,  plaintiff, 

lately  before  E.  F.,  a  justice  of  the  peace  of  the  township  of ,  in  said 

county,  recovered  against  the  said  defendant  for  his  damages  which  he  had 
sustained,  as  well  by  reason  of  the  not  performing  certain  promises  and  un- 
dertakings then  lately  made  by  the  said  defendant  to  the  said  plaintiff  as 
for  the  costs  and  charges  by  the  said  plaintiff  about  his  suit  in  that  behalf 
expended  (or  as  the  case  may  be,  according  to  the  form  of  the  action), 
whereof  the  said  defendant  is  convicted,  as  appears  to  us  of  record,  a  certi- 
fied transcript  of  which  said  judgment  has  been  heretofore  duly  filed  in  the 
office  of  the  clerk  of  our  said  circuit  court,  together  with  an  affidavit  stat- 
ing the  amount  remaining  due  upon  said  judgment,  and  entered  and  dock- 
eted by  the  said  clerk  in  his  said  office,  according  to  the  statute  in  such 
case  made  and  provided ;  and  if  sufficient  goods  and  chattels  of  the  said 
defendant  cannot  be  found  within  your  said  county,  that  you  then  cause 
the  damages  and  costs  aforesaid  to  be  made  of  the  real  estate  of  the  said 
defendant  within  your  county;  and  have  you  that  money  before  our  circuit 

court  at ,  on ,  to  render  unto  the  said  plaintiff  for  his  damages, 

costs,  and  charges  aforesaid;  and  have  you  then  and  there  this  writ. 

Witness,  etc. 

§  11.  Indorsement. 

In  some  cases,  before  an  execution  is  delivered  to  an 
officer  to  be  served,  it  must  be  indorsed  witli  a  direction 


§  11  Executions  711 

to  the  officer  limiting  liim  to  some  extent  in  the  manner 
of  service.  Thus,  when  a  judgment  is  rendered  in  form 
against  two  or  more  joint  defendants,  but  the  process  by 
which  the  suit  was  commenced  was  served  upon  only  a 
part  of  them,  the  execution  upon  such  judgment,  though 
issued  in  form  against  all  of  the  defendants,  must  have 
the  names  of  the  defendants  who  were  not  served  indorsed 
upon  it,  and  must  not  be  served  upon  the  person  of  any 
defendant  w^hose  name  is  so  indorsed  or  levied  upon  his 
sole  property;  but  it  may  be  levied  upon  any  personal 
property  owned  by  him  as  a  partner  with  any  of  the  de- 
fendants who  were  served.^^ 

When  a  judgment  has  been  obtained  against  a  public 
officer  and  the  sureties  upon  his  official  bond,  a  direction 
is  required  to  be  indorsed  upon  the  execution,  by  the  at- 
torney issuing  it,  to  levy  it  first  upon  the  property  of  the 
officer  and,  if  "sufficient  of  such  property  cannot  be  found 
to  satisfy  the  execution,  then  to  levy  upon  the  property 
of  the  sureties.^* 

In  suits  commenced  by  writ  of  attachment,  when  a  copy 
of  the  attachment  has  not  been  served  and  the  defendant 
has  not  appeared  in  suit,  the  judgment  is  not  conclusive 
against  the  defendant.  In  such  case,  the  execution  may 
issue  in  the  same  form  as  if  a  copy  of  the  attachment 
had  been  personally  served  on  the  defendant,  but  will 
authorize  the  officer  to  whom  it  is  directed  to  sell  only 
the  property  attached  in  the  suit,  and  it  is  the  duty  of 
the  attorney  issuing  the  execution  to  indorse  thereon  or 
annex  thereto  a  description  of  the  property  so  attached, 
with  a  direction  to  the  officer  to  sell  the  same,  or  so  much 
thereof  as  may  be  sufficient  to  satisfy  the  execution,  and 
not  to  levy  the  same  or  any  part  thereof  upon  any  other 
property.^^ 

63Jud.   Act,  ch.  23,   §19;  Comp.  65  Jud.    Act,    ch.    26,    §§26,    27; 

Laws  1915,   §  12834.  Comp.  Laws  1915,  §§  13053,  13054. 

54  Jud.    Act,    ch.    21,    §6;  Comp.  Noncompliance   with    statute   can- 

Laws  1915,   S  12788.  not  be  taken  advantage  of  on  writ 


712  Executions  §  11 

And  whenever  an  execution  against  the  property  of  the 
defendant  is  issued  upon  a  judgment  for  a  debt  secured 
by  mortgage  of  real  estate,  it  is  the  duty  of  the  plaintiff 
or  his  attorney  to  indorse  upon  the  execution  a  brief  de- 
scription of  the  premises  mortgaged,  with  a  direction  to 
the  officer  not  to  levy  the  execution  upon  the  mortgaged 
premises  or  any  part  thereof.**^ 

§  12.  When  property  bound  by  writ. 

Whenever  an  execution  is  issued  against  the  property 
of  any  person,  his  goods  and  chattels,  lands  and  tene- 
ments, levied  upon  by  such  execution,  are  bound  from 
the  time  of  the  levy.*' 

§  13.  Alia,s  and  pluries  writs. 

Upon  the  return  of  a  fieri  facias  unsatisfied  in  whole 
or  in  part,  successive  or  alias  executions  may  be  issued, 
one  after  another,  for  the  amount  unpaid  upon  the  judg- 
ment ;  **  but  an  alias  execution  should  not  be  issued  until 
the  first  one  has  been  returned,  nor  should  it  be  issued 
upon  a  return  which  fails  to  show  the  first  writ  unsatis- 
fied in  whole  or  in  part.  In  the  absence  of  a  return  of  the 
first  writ,  where  no  property  has  been  levied  upon,  or 
where  real  estate  has  been  levied  upon,  such  levy  being 
not  even  a  prima  facie  satisfaction,  the  issuance  of  an 
alias  would  be  a  mere  irregularity,*®  which  might  be 
cured  by  a  return  nunc  pro  tunc ;  ^^  but  if  a  levy  has  been 
made  upon  personal  property  under  the  first  writ,  which 
is  a  prima  facie  satisfaction,  the  absence  of  a  return 
would  render  the  proceedings  under  the  alias  not  merely 
irregular,  but  absolutely  void.^^ 

of    error.      Hitchcock    v.    Hahn,    60  59  Spafford  v.  Beach,  2  Doug.  150. 

Mich.  459.  60  Miller  v.  Hanley,  94  Mich.  253. 

66Jud.   Act,   ch.   23,    §§124,   125;  61  Friycr     v.     McNaughton,     110 

Comp.  Laws  1915,  §§  129.39,  12940.  Mich.    22;    Farmers'    &   Mechanics' 

67Jud.    Act,    ch.    2.3,    §6;    Conip.       Bank  v.  Kingsley,  2  Doug.  379. 
Laws  1915,  §  12821. 

68  Jud.    Act,    ch.    23,    §  1 ;    Comp. 
Laws  1915,  §  12816. 


§  15  Executions  713 

§  14.  Sequential  execution  in  special  cases. 

If  an  execution  is  retunied  unsatisfied  in  whole  or  in 
part  because  of  tlie  sale  of  property  which  afterwards 
appeared  not  to  have  belonged  to  the  judgment  debtor  or 
not  to  have  been  liable  to  execution,  and  any  damages 
have  been  recovered  against  the  judgment  creditor  or 
the  officer  who  served  the  execution  on  account  of  the 
seizure  and  sale  of  the  property,  the  court  may,  on  the 
application  of  the  judgment  creditor,  order  a  new  ex- 
ecution to  be  issued  on  the  judgment  for  the  amount  then 
remaining  justly  and  equitably  due  thereon.^^  And 
where,  in  an  action  for  the  recovery  of  the  possession  of 
real  estate  sold  by  virtue  of  an  execution,  judgment  is 
rendered  against  the  purchaser  or  his  heirs  or  assigns 
in  consequence  of  any  irregularity  in  the  proceedings 
concerning  the  sale,  and  the  purchaser  or  his  heirs  or  as- 
signs have  recovered  of  the  party  for  whose  benefit  the 
sale  was  made  the  amount  paid  on  the  purchase,  such 
party  or  his  personal  representatives  may  have  a  further 
execution  on  the  judgment  by  virtue  of  which  the  sale 
was  made  to  levy  the  amount  paid  on  the  sale  with  in- 
terest.*^ 

B.  Property  Subject  to  Levy 

§  15.  In  general. 

Property  subject  to  attachment  is  also  subject  to  ex- 
ecution.** Therefore,  the  statutes  and  decisions  relating 
to  both  are  considered  herein.  Exemptions  of  personal 
property  and  the  procedure  connected  therewith  is 
treated  of  in  the  article  on  Exemptions,  while  the  exemp- 
tion of  homesteads  is  considered  in  the  article  on  Home- 
steads. 

62Jufl.   Act,   ch.   23,    §64;    Comp.  64  Jnd.    Act,   ch.   23,    §42;    Comp. 

Laws  1915,  §  12879.  Laws  1915,  §  12857. 

63Jud.  Act,  ch.  23,  §129;   Comp. 
Laws  1915,  §  12944. 


714  Executions  §  15 

By  statute,  all  chattels,  real  or  personal,  and  all  other 
goods  liable  to  execution  by  the  common  law  may  be 
taken  and  sold  thereon,  except  as  is  otherwise  provided 
by  law,  and  as  will  be  presently  explained.^^  The  right 
of  seizure  is  not  confined  to  property  existing  within  the 
state  at  the  time  of  suit  or  judgment.®^ 

§  16.  Coin  and  other  money. 

Current  gold  and  silver  coin  may  be  taken  in  execu- 
tion and  paid  to  the  creditor  as  money  collected,  and 
should  not  be  exposed  to  sale  thereon.^''  Any  bills  or 
other  evidence  of  debt,  issued  and  circulated  as  money, 
may  be  taken  in  execution  and  paid  to  the  creditor  at 
their  par  value  as  money  collected,  if  he  will  accept  them; 
otherwise  they  must  be  sold  as  other  chattels.®^ 

§  17.  Goods  mortg^a^ed  or  pledged. 

At  the  common  law,  goods  and  chattels  mortgaged, 
whether  in  possession  of  the  mortgagor  or  mortgagee, 
were  not  subject  to  levy  and  sale  upon  execution  either 
before  or  after  condition  broken.^®  Under  the  provisions 
of  an  old  statute  in  this  state,  the  interest  in  goods 
pledged,  by  way  of  mortgage  or  otherwise,  of  the  person 
making  the  pledge  might  be  taken  and  sold  under  execu- 
tion, but  it  was  held  that,  inasmuch  as  a  mortgage  oper- 
ated to  divest  the  title  of  the  mortgagor  and  convey  it 
and  the  right  of  possession  to  the  mortgagee,  subject  to 
the  conditions  of  the  mortgage,  the  mortgagor  had  no  in- 
terest which  could  be  subjected  to  execution,  unless,  by 
express  stipulation  in  the  mortgage,  the  mortgagor  was 
entitled  to  retain  the  property  until  condition  broken  or 
for  some  other  definite  time ;  in  which  case,  the  mortgagor 

65Jud.    Act,   ch.   23,    §42;    Comp.  68  Jud.    Act,   ch.   23,   §39;    Comp. 

Laws  1915,  §  12857.  Laws  1915,  §  12854. 

66  Ralston  v.  Chapin,  49  Mich.  274.  69  Taunahill  v.  Tuttle,  3  Mich.  104, 

67  Jud.   Act,  ch.   23,   §38;    Comp. 
Laws   1915,   §  12853. 


§  17  Executions  715 

was  held  to  have  a  leviable  interest  until  condition 
broken,  but  not  afterwards,  because,  by  the  breach  of  the 
condition,  the  title  to  the  property  became  absolute  in  the 
mortgagee.''" 

But,  at  a  later  time,  mortgages  of  chattels  came  to  be 
regarded  in  this  state  as  being  of  an  entirely  different 
nature,  so  that,  instead  of  being  a  conveyance  of  the  title 
to  the  mortgagee  subject  to  the  condition  of  the  mort- 
gage, and  by  the  breach  of  it  to  become  absolute,  it  came 
to  be  looked  upon  as  leaving  the  title  to  the  property  in 
the  mortgagor  and  creating  a  lien  upon  the  property  in 
favor  of  the  mortgagee,  so  that  the  position  of  the  parties 
was  that  of  debtor  on  the  one  side  and  creditor  secured 
by  lien  on  property  upon  the  other.'^  This  is  the  doc- 
trine which  now  prevails  in  this  state  in  relation  to  chat- 
tel mortgages,  and  under  it  the  title  of  the  mortgagor 
cannot  be  divested  except  by  actual  foreclosure  of  the 
lien.'^ 

The  statute,  therefore,  provides  that,  when  goods  or 
chattels  are  pledged  by  way  of  mortgage  or  otherwise 
for  the  payment  of  money  or  the  performance  of  any  con- 
tract or  agreement,  such  goods  or  chattels  may  be  levied 
upon  and  sold  on  execution  against  the  person  making 
such  pledge,  subject  to  the  lien  of  the  mortgage  or  pledge 
existing  thereon;  and  the  purchaser  at  the  sale  will  be 
entitled  to  pay  to  the  person  holding  the  mortgage  or 
pledge  the  amount  actually  due  thereon,  or  otherwise 
perform  the  terms  and  conditions  of  the  pledge,  at  any 
time  before  the  actual  foreclosure  of  the  mortgage  or 

TOTannahill    v.    Tuttle,    3    Mich.  well  v.  Pray,  41  Mich.  307;  Wilson 

104;    Eggleston  v.  Mundy,  4  Mich.  v.  Montague,  57  Mich.  638;  Haynes 

295;    Bacon    v.    Kimmel,    14    Mich.  v.    Leppig,    40    Mich.    602;     Gard- 

201.  ner  v.  Matteson,  38  Mich.  200;  Flan- 

71  LiK'king    v.    Wesson,    25    Mich.  ders  v.  Chamberlain,  24  Mich.  305. 
443;    Kohl  v.  Lynn,   34  Mich.   360;  72  Kohl    v.    Lynn,   34   Mich.    360; 

People    V.     Bristol,    35    Mich.     28;  Brink  v.  Frcoff,  40  Mich.  511;  Grove 

Grove  v.  Wise,  39  Mich.  161;  Cad-  v.  Wise.  39  Mich.  161. 


716  Executions  §  17 

pledge,  and,  on  such  payments  or  performance  or  a  full 
tender  thereof,  will  thereupon  acquire  all  the  right,  in- 
terest and  property  which  the  defendant  in  execution 
would  have  had  in  the  goods  or  chattels  if  such  mortgage 
or  pledge  had  not  been  madeJ* 

When  a  levy  is  made  upon  mortgaged  chattels,  it  is 
only  a  levy  upon  the  right  of  redemption.  This  right  is 
not  an  apportionable  one,  and  consequently  the  officer 
making  the  levy  cannot  select  a  portion  of  the  mort- 
gaged goods  and  confine  his  levy  to  such  portion,  but 
must  take  all  of  them.  The  property  cannot  be  sold  in 
parcels.  In  so  far  as  the  mortgaged  property  is  within 
the  jurisdiction  of  the  officer,  it  is  his  duty  to  levy  on 
the  whole  of  it  and  sell  it  in  one  parcel  or  lot,  subject  to 
the  mortgage ;  and,  after  levying  on  a  part  of  it,  a  reason- 
able time  must  be  given  him  to  find  the  rest  of  the  mort- 
gaged property."'^* 

A  levy  upon  mortgaged  chattels  quite  frequently  gives 
rise  to  questions  as  to  the  respective  rights  in  relation  to 
the  property  which  may  be  exercised  by  and  belong  to 
the  officer  making  the  levy  and  the  owner  of  the  mort- 
gage lien.  The  law  does  not  intend  to  allow  either  the 
mortgagee  or  the  execution  creditor  to  overreach  or  in- 
fringe the  rights  of  the  other,  but  aims  to  secure,  as  far 
as  practicable,  the  application  of  the  debtor's  property 
to  both  demands  upon  principles  of  justice.  The  officer 
therefore  has  the  right,  as  against  the  mortgagee,  to  re- 
tain the  goods  in  safe  and  convenient  custody  for  the 
time  prescribed  by  law  for  bringing  the  property  to  a 
sale,  notwithstanding  the  fact  that  the  mortgage  is  past 
due.''^^    While  lie  is  bound  to  hold  his  possession  in  such 

78Jud.   Act,   eh.   23,   §40;    Comp.  472;    Haynes    v.    Leppig,    40    Mich. 

Laws  1915,  §12855.  602;    Daggett,  Bassett   &   Hills   Co. 

74  Baldwin  v.  Talbot,  46  Mich.  19 ;  v.   McClintock,  56  Mich.   51. 
Bayne  v.   Patterson,   40   Mich.   658;  76  Cary  v.  Hewitt,  26  Mich.  228 

Worthington    v.    Hanna,    2.3    Mich.  Macomber  v.  Saxton,  28  Mich.  516 

530;   Harvey  v.  McAdams,  32  Mich.  Wilson  v.  Montague,  57  Mich.  e.'JS 


§  17  Executions  717 

a  way  as  not  to  interfere  with  the  mortgagee's  right  of 
sale,  he  has  a  right  to  retain  it  in  custody  until  a  sale  is 
made,  and  has  a  right  to  know  the  amount  and  condition 
of  the  mortgage  indebtedness.'® 

When  the  mortgagee  proceeds  to  sell,  there  is  no  rea- 
son why  he  cannot  so  far  act  in  concert  with  the  officer 
as  to  protect  both  rights.  Unless  he  has  actually  adver- 
tised before  the  levy,  the  sale  by  the  officer  will  usually 
take  place  before  the  mortgagee  can  have  any  occasion 
to  act  at  all.  It  is  easy  to  imagine  possible  conflicts,  but 
sensible  and  honest  men  can  as  easily  avoid  them.  Con- 
current possessions  are  not  rare,  and,  if  the  right  exists, 
it  must  be  respected  or  the  parties  must  take  the  conse- 
quences.'' The  officer  may;  for  the  purpose  of  the  levy, 
take  possession  of  the  property  when  it  is  in  the  hands 
of  the  mortgagee.'*  The  payment  or  tender  of  the  amount 
due  upon  the  mortgage  is  not  a  condition  precedent  to 
the  making  of  the  levy  and  sale.'® 

A  levy  upon  mortgaged  chattels  may  be  made  at  any 
time  before  foreclosure.  After  foreclosure,  the  title  to 
the  goods  has  been  removed  from  the  mortgagor,  and  he 
has  no  interest  in  them.  Before  foreclosure,  the  title  is 
in  him,  and  subjects  the  goods  to  levy  under  the  statute.'" 

An  execution  creditor,  for  whom  a  levy  has  been  made 
upon  mortgaged  chattels,  has  the  same  right  to  protect 
his  interest  in  the  property  that  any  other  lien-holder 
would  have,  and,  to  this  end,  he  may  pay  off  the  mort- 
gage, demand  and  receive  an  assignment  of  the  mortgage 
and  be  subrogated  to  the  rights  of  the  mortgagee." 

First    Nat.    Bank    v.    Summers,    7i5  Judge,    53    Mich.    560;     Barber    v. 

Mich,    107;     Nelson    v.    Ferris,    ;'.0  Smith,  41  Mich.  i:?8. 

Mich.  497.  78  King  v.  Ilubbell,  42  Mich.  597. 

76  Haynes  v.  Leppig,  40  Mich.  602.  80  Wilson  v.  Montague,  57  Mich. 
See  also  Merrill  v.  Denton,  7.'^  Mich.  6.38;  Gary  v.  Hewitt,  26  Mich.  228; 
628.  Macomber  v.  Sexton,  28  Mich.  516; 

77  Haynes    v.    Leppig,    40    Mich.  Nelson  v.  Ferris,  30  Mich.  497. 

602 ;  King  v.  Hubbell,  42  Mich.  597.  81  Lucking    v.    Wesson,    25    Mich. 

78  Smith     v.     Menominee     Circuit       443. 


718  Executions  §  18 

§  18.  Mortgagee's  interest. 

The  interest  wliicli  a  mortgagee  has  in  the  mortgaged 
property  is  not  subject  to  levy.*^ 

§  19.  Property  held  in  trust  and  other  equitable  estates. 

The  earlier  decisions  conclusively  established  that 
trust  estates  were  not  attachable.  This  still  obtains  as 
a  general  rule,  although  by  statute  an  exception  has  been 
introduced  permitting  attachment  of  legal  or  equitable 
interests  of  parties  to  contracts  for  the  sale  and  purchase 
of  land,  including  lands  fraudulently  conveyed  and  cer- 
tain equities  and  rights  of  redemption  specially  provided 
for.83 

§  20.  Partnership  property. 

While,  according  to  the  weight  of  authority,  with 
which  the  supreme  court  of  this  state  concurs,  a  levy 
may  be  made  upon  the  individual  interest  of  a  partner 
in  the  partnership  property,  such  interest  must  be  treated 
as  consisting  of  a  right  to  an  aliquot  share  of  what  re- 
mains after  the  payment  of  the  partnership  debts  and 
the  adjustment  of  accounts  between  the  partners.  Ac- 
cordingly, the  sheritf  cannot  levy  upon  specific  articles 
belonging  to  the  partnership.  It  may  be  doubtful  if  he 
can  do  more  in  any  case  than  to  sell  the  entire  interest 
of  the  execution  defendant,  leaving  the  purchaser  to  se- 

82Feldman  v.  Preston,  194  Mich.  §12897.     See  also  Jud.  Act,  eh.  23, 

352;    Columbia  Bank  v.  Jacobs,   10  S140;    Comp.    Laws    1915,    §12955, 

Mich.  349.  as   to   payments   by   vendee   in  land 

83  Trask   v.   Green,  9   Mich.   358 ;  contract  in  case  of  levy  on  interest 

Maynard   v.   Hoskins,   9   Mich.   485;  of  vendor. 

Gorham  v.  Wing,  10  Mich.  486;  Gor-  A  levy  on  the  interest  of  the  ven- 

ham  V.  Arnold,  22  Mich.  247 ;  Thayer  dor  takes  the  full  legal  title  and  the 

v.    Arnold,    32    Mich.    336;    Lee    v.  beneficiary    interest    subject    to    the 

Enos,    97    Mich.    276;    Feldman    v.  liability    of    conveying   on    complete 

Preston,   194  Mich.  352;    Jud.   Act,  performance  by   the  vendee.     Doak 

ch.     23,     §  81 ;    Comp.    Laws     1915,  v.  Runyan,  33  Mich.  75. 


§  22  Executions  719 

cure  his  rights  by  proceeding's  for  an  accounting  against 
the  co-partner  of  the  debtor." 

§21.  Growing"  crops. 

While  it  is  quite  true  that  growing  crops  are  a  part 
of  the  realty,  yet,  for  the  purposes  of  a  levy  and  sale  on 
execution,  they  are  treated  as  personalty.®^  The  statute 
provides  that,  when  a  levy  is  made  upon  grain  while 
growing,  or  on  any  unharvested  crops,  by  virtue  of  an 
execution,  the  officer  making  the  levy  shall  file  in  the 
office  of  the  township  clerk  of  the  township  or  city  clerk 
or  recorder  of  the  city  where  such  grain  or  crops  are  at 
the  time  of  making  the  levy,  and  that  such  clerk  or  re- 
corder shall  file  such  notice  in  his  office  in  the  same  man- 
ner as  he  is  required  by  law  to  file  chattel  mortgages. 
Such  notice  will  be  constructive  evidence  to  all  persons 
of  the  interest  of  the  plaintiff  in  the  execution.  No  sale 
of  unharvested  crops  or  grain  can  lawfully  be  made  un- 
til they  are  ripe  or  fit  to  be  harvested ;  but  a  levy  thereon 
will  be  continued  beyond  the  return  day  of  the  execution, 
if  necessary,  for  thirty  days  after  they  are  ripe  or  fit  to 
be  harvested.®^ 

§  22.  Manuscripts,  cop3a'ights,  books,  etc. 

Unpublished  manuscripts  are  not  subject  to  execution. 
The  right  of  the  proprietor  of  a  manuscript  to  publish  it 
or  keep  it  from  publication  is  not  only  a  pro))erty  right, 
but  one  which  is  purely  incorporeal  and  attended  with 
considerations  of  a  nature  entirely  different  from  any 
involved  in  other  rights.  The  law  will  not  permit  it  to 
be  interfered  with  except  as  he  chooses  to  make  it  pub- 
lic, and  the  right  is  one  which  is  entirely  independent  of 

S^Kinze   v.   Cox,   113   Mich.   546;  85  Preston  v.  Ryan,  45  Mich.  174; 

Lambert   v.   Griffith,   50   Mich.   286;  Friyer    v,    McNaughtoii,    110    Mich. 

Hutchinson     v.     Dubois,     45     Mich.  22. 

143 ;    Haynes  v.  Knowles,  36  Mich.  86  Jud.    Act,  eh.   23,    §  55 ;    Comii. 

407.  Laws  1915,  §12870. 


720  Executions  §  22 

locality,  and  belongs  essentially  to  the  owner,  wherever 
he  may  be,  and  in  whatever  locality  one  or  more  copies 
of  the  writings  may  be  found.  The  value,  when  it  is  con- 
sidered at  all  in  a  pecuniary  sense,  depends  on  the  in- 
fonnation  or  interest  of  the  composition  or  document, 
and  not  on  the  particular  bundle  of  papers  which  records 
it.  Even  after  a  work  is  published,  no  creditor  can  reach 
the  copyright,  unless  some  special  provision  of  law  is 
made  upon  the  subject,  and  it  is  also  well  settled  that  the 
author's  rights  are  never  subject  to  disturbance  except 
in  accordance  with  statutes.  No  law  can  compel  a  man 
to  publish  what  he  does  not  choose  to  publish,  and  it 
would  be  very  absurd  to  hold  that  books  could  be  seized 
and  sold  on  execution,  which,  after  the  sale,  the  pur- 
chaser could  not  use.  Accordingly,  it  was  held  that  a 
set  of  manuscript  abstract  books  would  not  be  subject 
to  execution.®''' 

It  is  now,  however,  provided  by  statute  that  all  ab- 
stract books,  maps,  plats,  charts  and  other  records  owned 
or  kept  by  any  person,  co-partnership  or  coi-poration  for 
the  purpose  of  furnishing  abstracts  or  information  con- 
cerning the  title  to  lands  in  this  state,  shall  be  liable  to 
seizure  and  sale  on  execution  in  like  manner  as  other  per- 
sonal property.®^ 

§  23.  Choses  in  action. 

In  the  absence  of  express  statutory  authority,  choses 
in  action  are  not  subject  to  levy.*^  Orders  for  the  pay- 
ment of  money,  such  as  warrants  upon  a  county  treas- 
urer, being  choses  in  action,  are  not  subject  to  levy  on 
execution.  For  the  same  reason,  promissory  notes  and 
bills  of  exchange  are  not.®" 

87  Dart  V.  Woodhouse,  40  Mich.  194  Mich.  405,  411;  Feldman  v. 
399.  Preston,  194  Mich.  352. 

88  Jufl.  Act,  ch.  23,  §  37 ;  Conip.  90  Jensen  v.  Oceana  Circuit  Judge, 
Laws  1915,  §  12852.  194  Mich.  405,  411;  People  v.  Audi- 

89  Jensen  v.  Oceana  Circuit  Judge,  tors  of  Wayne  County,  5  Mich,  223. 


§  24  Executions  .  721 

§  24.  Corporate  shares. 

Any  share  or  interest  of  any  stockholder  in  any  cor- 
poration incorporated  under  the  authority  of  any  law  of 
this  state,  unless  expressly  exempted  by  law,  may  be 
taken  in  execution,®^  if  standing  in  his  name  on  the  books 
of  the  corporation.®^ 

The  officer  of  the  company  who  is  appointed  to  keep 
a  record  or  account  of  the  shares  or  interest  of  the  stock- 
holders therein,  or  in  whose  office  there  is  required  to  be 
kept  any  list  or  statement  showing  the  stockholders  of 
the  corporation  and  the  number  of  shares  held  by  each 
or  their  interest  therein,  is  required,  uyjon  the  exhibiting 
to  him  of  the  execution,  to  give  to  the  officer  holding  the 
execution  a  certificate  of  the  number  of  shares  or  amount 
of  the  interest  held  by  the  judgment  debtor.®^ 

The  officer  holding  the  execution  must  leave  a  copy  of 
it,  certified  by  him,  with  the  clerk,  treasurer,  cashier  or 
agent  of  the  corporation,  if  there  be  any  such  officer,  and, 
if  there  be  not,  then  with  any  officer  or  person  who  has 
at  the  time  the  custody  of  the  books  and  papers  of  the 
corporation  within  this  state.®*  No  levy  upon  shares  of 
stock  for  which  a  certificate  is  outstanding,  however,  will 

91  Jud.  Act,  ch.   23,   §58;    Comp.  that  the  legislature  provide  specifi- 

Laws    1915,    §12873.  cally  therefor  and  prescribe  in  de- 

As  to  the  exemption  of  shares  in  tail,    or    at    least    in    substance,    all 

building   and  loan   associations,  see  the    means    necessary    for    that    ob- 

Jud.  Act,  ch.  23,  §  45 ;  Comp.  Laws  jeet.   Van  Norman  v.   Jackson   Cir- 

1915,  §12860;   and  Morley  Bros.  v.  cuit    Judge,    45    Mich.     204.      See 

National  Loan  &  Investment  Co.,  120  Lyon  v.   Denison,  80   Mich.   371. 

Mich.  171.  92  Feige  v.  Burt,  118  Mich.  243. 

Shares    of    stock    in    incorporated  93  Jud.   Act,   ch.   23,   §59;    Comp. 

companies  were  not  leviable  at  com-  Laws  1915,  §  12874;  Blair  v.  Comp- 

mon   law,    being  intangible   entities  ton,  33  Mich.  414. 

and    incapable    of    caption    by    the  94  Jud.   Act,  ch.   23,   §60;    Comp. 

methods  of  that  system.     Courts  of  Laws  1915,  §  12875;  Blair  v.  Comp- 

equity   used   to   afford   a   remedy   to  ton,  33  Mich.  414. 

the   creditor   against   such   property,  Shares   cannot   be   levied    upon   if 

but   in   order   that   it  may   be   pro-  the   debtor  is   not  the  legal   owner, 

ceeded  against  without  going  into  a  Van     Norman     v.     Jackson     Circuit 

court  of  equity,  it  is  indispensable  Judge,  45  Mich.  204. 
1  Abbott— 46 


722  Executions  §  24 

be  valid  until  the  certificate  has  been  actually  seized  by 
the  officer  making  the  levy  or  has  been  surrendered  to 
the  corporation  which  issued  it  or  its  transfer  by  the 
holder  has  been  enjoined  or  restrained.®^  To  this  end, 
it  has  been  provided  that  the  court  from  which  the  ex- 
ecution issued  may,  upon  motion  and  without  notice, 
make  an  order  restraining  such  transfer.®^ 

A  copy  of  the  execution  and  the  return  thereon,  certi- 
fied by  the  officer  executing  the  writ,  must,  within  four- 
teen days  after  the  sale,  be  left  with  the  officer  of  the 
company  whose  duty  it  is  to  keep  a  record  of  the  trans- 
fer of  shares;  and  the  purchaser  will  thereupon  be  en- 
titled to  a  certificate  or  certificates  of  the  shares  bought 
by  him,  upon  paying  the  fees  therefor  and  for  recording 
the  transfer.®''' 

If  the  shares  or  interest  of  the  judgment  debtor  were 
attached  in  the  suit  in  which  the  execution  issued,  the 
purchaser  will  be  entitled  to  all  dividends  which  accrued 
after  the  levy  of  the  attachment.®' 

§  25.  Property  devoted  to  public  use. 

Property  devoted  to  a  public  use  is  not  subject  to  ex- 
ecution,®® and  hence  the  track  and  roadbed  of  a  railroad 
comj^any  are  not  subject  to  execution,^  except  pursuant 
to  special  statutory  provisions.^ 

§  26.  Property  assigned  for  benefit  of  creditors. 

An  execution  levied  on  property  assigned  for  the  bene- 
fit of  creditors  after  such  assignment  and  before  the  ex- 

96  Jud.   Act,   ch.   23,    §  60 ;    Comp.  98  Jud.   Act,   ch.   23,   §  63 ;    Comp. 

Laws  1915,  §  12875.  Laws  1915,  §  12878. 

96  Jud.  Act,  ch.  23,  §61;  Comp.  99  Campbell  v.  Western  Electric 
Laws  1915,  §  12876.  Co.,  113  Mich.  333. 

97  Jud.   Act,   ch.   23,    §  62 ;    Comp.  1  Hackley  v.  Mack,  60  Mich.  591. 
Laws  1915,  §  12877;  Blair  v.  Comp-  2  McKee  v.  Grand  Rapids,  etc.,  R. 
ton,  33  Mich.  414;  Newberry  v.  De-  Co.,  41  Mich  274. 

troit,  etc..  Iron  Mfg.  Co.,  17  Mich. 
141. 


§  28  Executions  723 

piration  of  the  time  provided  for  the  filing  of  a  bond  by 
the  assignee,  shall  not  be  valid  or  create  any  lien  on  the 
property.* 

§27.  Property  of  deceased  person. 

Executions  cannot  be  issued  against  the  estate  of  a 
deceased  person  until  the  time  limited  by  the  court  for 
the  payment  of  debts  has  expired,*  nor  against  an  ex- 
ecutor or  administrator  *  except  in  certain  cases  where 
the  appointment  of  commissioners  to  allow  claims  has 
been  omitted.^ 

§  28.  Franchises. 

At  common  law  the  franchises  of  a  corporation  could 
not  be  sold  on  execution;'  but  it  is  provided  by  statute 
in  this  state  that  ''when  any  judgment  shall  be  recov- 
ered against  any  turnpike  or  other  corporation,  author- 
ized to  receive  toll,  the  franchise  of  such  corporation, 
with  all  the  rights  and  privileges  thereof,  together  with 
all  their  corporate  property,  both  real  and  personal,  may 
be  taken  on  execution,  and  sold  at  public  auction. " '  A 
street  railroad  company  is  a  "corporation  authorized  to 
receive  toll,"  within  this  statutory  provision,^  but  it  has 
been  held  not  to  apply  to  telephone  corporations,  but 
only  to  other  corporations  of  the  nature  of  turnpike  cor- 
porations.^" It  authorizes  the  sale  only  of  the  right  to  the 
possession  of  the  road  and  its  fixtures,  and  the  right  of 
franchise  of  receiving  the  tolls  for  the  time  agreed  upon.^^ 

3Jud.    Act,    ch.    42,    §1;    Comp.  8  Jud.    Act,    ch.    23,    §65;    Comp. 

Laws    1915,    §  13604.  Laws  1915,  §  12880. 

4  Jud.  Act,  ch.  55,  §15;  Comp.  9  McKee  v.  Grand  Eapids  St.  Ry. 
Laws  1915,  §  13878.  Co.,  41  Mich.  274. 

5  Jud.  Act,  ch.  23,  §4;  Comp.  10  Ripley  v.  Evans,  87  Mich.  217. 
Laws  1915,  §  12819.  11  Joy    v.    Jackson    &    M.    Plauk 

6  Jud.    Act,   eh.    61,  §29;    Comp.      Road  Co.,  11  Mich.  155,  169. 
Laws  1915,  §  14080. 

7  James    v.    Pontiac  &    G.    Plank 
Road  Co.,  8  Mich.  91. 


724  Executions  §  28 

A  sale  of  the  franchise  for  a  certain  i)eriod  in  part  pay- 
ment of  the  execution  is  unauthorized.^^ 

§  29.  Property  in  custody  of  the  law. 

Ordinarily  property  in  custody  of  the  law  is  not  sub- 
ject to  levy  without  leave  of  court. ^^  Where  an  ex- 
sheriff  has  attached  property  in  his  custody,  it  is  his  duty, 
after  an  execution  has  been  issued  in  the  suit,  to  expose 
such  property  to  the  sheriff,  on  request,  so  that  it  may 
be  taken  in  execution  and  sold.^* 

§  30.  Real  property. 

By  provision  of  the  statute,  all  the  real  estate  of  a 
debtor  not  expressly  exempted,  including  legal  and  equi- 
table interests  in  lands  acquired  by  the  parties  to  con- 
tracts for  the  sale  and  purchase  of  lands, ^^  whether  in 
possession,  reversion  or  remainder,  and  in  lands  fraudu- 
lently conveyed  with  intent  to  defeat,  delay  or  defraud 
his  creditors,  and  the  equities  and  rights  of  redemption 
hereinafter  mentioned  are  subject  to  the  payment  of  his 
debts,  liabilities  and  obligations,  and  may  be  levied  upon 
and  sold  on  execution.^^ 


12  James  v.  Pontiac  &  G.  Plank  ' '  Real  estate  of  the  debtor, ' '  as 
Eoad  Co.,  8  Mich.  91.  used    in    the    statute,   refers   to   his 

13  Campau  v.  Detroit  Driving  Club,  legal  estate,  and  does  not  authorize 
130  Mich.  417;  Jensen  v.  Oceana  an  execution  on  a  trust  interest  of 
Circuit  Judge,  194  Mich.  405,  411.  the  debtor  in  real  estate.     Trash  v. 

14  Fletcher  v.  Morrell,  78  Mich.  Green,  9  Mich.  358;  Gorham  v. 
176.  Wing,    10    Mich.    486;    Feldman    v. 

16Doak  V.  Runyan,  33  Mich.  75;  Preston,  194  Mich.  352,  359. 
Lipp  V.  Jacobs,  198  Mich.  357.  In  the  absence  of  proof  of  a  fraudu- 
16  Jud.  Act,  ch.  23,  §  82 ;  Comp.  lent  conveyance  of  land  to  the  per- 
Laws  1915,  §  12897.  See  also  Pub.  son  holding  the  legal  title,  the 
Acts  1917,  No.  215.  grantor  has  no  interest  therein  sub- 
Equitable  interest  cannot  be  sold,  jcct  to  execution.  McArthur  v.  0*1- 
except  as  provided  above,  under  ex-  iver,  60  Mich.  605. 
ecution  at  law.  Grover  v.  Fox,  36  Where  the  creditor  knows,  at  the 
Mich.  453 ;  Gorham  v.  Arnold,  22  time  of  the  levy,  that  the  debtor  has 
Mich.  247.  parted  with  his  title  to  the  lands,  he 


§  32  Executions  725 

§  31.  Equity  of  redemption. 

All  rights  of  redeeming  mortgaged  real  estate  and  real 
estate  sold  on  execution  may  be  sold  on  execution  in  the 
same  manner  as  other  real  estate,  except  that,  when  a 
judgment  is  recovered  for  all  or  any  part  of  a  debt  se- 
cured by  mortgage  of  real  estate,  it  is  not  lawful  to  sell 
the  equity  of  redemption  by  virtue  of  an  execution  upon 
the  judgment."  If  an  execution  upon  such  a  judgment 
cannot  be  collected  out  of  the  other  property  of  the  de- 
fendant, the  officer  must  return  it  unsatisfied  in  whole  or 
in  part,  as  the  case  may  be.^'  When  an  execution  against 
the  property  of  a  defendant  is  issued  upon  a  judgment 
for  all  or  any  part  of  a  debt  secured  by  mortgage,  it  is 
the  duty  of  the  plaintiff  or  his  attorney  to  indorse  upon 
it  a  brief  description  of  the  premises  mortgaged,  with  a 
direction  to  the  officer  not  to  levy  the  execution  upon  the 
mortgaged  premises  or  any  part  thereof. ^^ 

§  32.  Leasehold  interests. 

Leasehold  interests  in  land  were  formerly  sold  upon  ex- 
ecution as  personalty.  The  sale  of  an  estate  for  years  in 
land,  for  example,  was  held  to  be  utterly  void  if  made 

should  proceed  by  bill  in  aid  of  ex-  fraud  of  creditors,  against  a  levy  by 

ecution.      Spring    v.    Raymond,    134  an  attachment  or  execution  creditor. 

Mich.  84,  Dixon  v.  Hill,  5  Mich.  404. 

Lands  purchased  by  the  judgment  17  Jud.   Act,  ch.  23,   §§121,   124; 

debtor  but  conveyed  directly  to  third  Comp.  Laws  1915,  §§  12936,  12939. 

persons,  to  defraud  creditors,  are  not  Interest   of  mortgagor  in  land  is 

subject.      Trask   v.    Green,    9    Mich.  leviable.    Walker  v.  White,  60  Mich. 

358;    Maynard  v.   Hoskins,   9   Mich.  427;  Hyde  v.  Shank,  77  Mich.  517; 

485,  Gorham  v.  Arnold,  22  Mich.  547. 

Where   land   has    been    previously  The  interest  of  one  who  conveys 

conveyed,    a    levy    under    execution  by    deed    absolute   in    form    but    in- 

against  the  vendor  gives  no  better  tended    as    a   mortgage    is    leviable, 

title    than    is    held    by    the    debtor.  Flynn  v.  Holmes,  145  Mich.  606. 

First  Nat.  Bank  v.  Buck,  56  Mich.  18  Jud.  Act,  ch.  2.3,  §126;   Comp. 

394.  Laws   1915,   §  12941. 

No  one  but  a  purchaser  for  a  valu-  19  Jud.  Act,  ch.  23,  §  125;   Comp, 

able  consideration  can  claim  title  to  Laws  1915,  §  12940. 
projierty  which  has  been  assigned  in 


726  ExECUTioJ^s  §  32 

in  accordance  with  the  statutory  provisions  for  the  sale 
of  real  estate  on  execution;  ^°  but  now,  by  statute,  lease- 
hold interest  in  lands  are  subject  to  levy  and  sale  upon 
execution,  and  the  proceedings  therefor  are  the  same  in 
all  respects  as  in  case  of  a  sale  of  the  fee  simple,  except 
that,  in  the  case  of  farm  leases,  the  debtor  has  the  right 
to  select  from  the  crops  growing  on  the  farm  any  of  the 
crops  to  the  extent  provided  for  in  subdivisions  six,  eight 
and  nine  of  section  forty-three  of  chapter  twenty-three 
of  the  Judicature  Act  relating  to  exemptions.^^ 

The  term,  "leasehold  interest,"  as  used  in  this  state, 
includes  mining  licenses  for  mining  ores  or  minerals,  but 
not  tenancies  at  will.^^ 

§  33.  Property  held  jointly. 

The  interest  of  a  joint  tenant  in  the  joint  estate  ^' 
or  of  a  tenant  in  common  ^^  is  subject  to  execution.  And 
where  a  judgment  is  obtained  against  two  defendants 
on  a  joint  and  several  demand,  the  interests,  joint  or 
several,  of  both  defendants  in  land,  is  leviable.^^  But 
a  crop  raised  on  a  farm  held  in  the  names  of  husband 
and  wife  as  tenants  by  entirety  is  not  subject  to  execu- 
tion against  the  husband  where  there  was  no  agreement 
between  the  spouses  as  to  the  ownership  of  the  crop.^^ 
So  land  held  by  husband  and  wife  as  tenants  by  entirety 
is  not  subject  to  levy  under  an  execution  on  a  judgment 
rendered  against  either  husband  or  wife  alone,  although 
it  is  subject  to  levy  on  a  joint  judgment  against  both 
hus])an(l  and  wife.^'' 

20  Buhl  V.  Kenyon,  11  Mich.  249;  23  Midgley   v.   Walker,   101    Mich. 
Grouse  v.  Mitchell,  130  Mich.  347.  583. 

21  .Tud.  Act,  ch.  23,  §  141 ;  Comp.  24  Michigan  State  Bank  v.  Kern, 
Laws  191.5,   §12956.  189  Mich.  467. 

The     exception     was     first  Intro-           25  Hewitt  v.  Durant,  78  Mich.  186. 

duced  by  the  Judicature  Act.  26  Dickey   v.   Converse,   117  Mich. 

22Jud,  Act,  ch.  23,  §146;  Comp.       449. 

Laws  1915,  §  12961.  27  "Upon  principle,  we  can  see  no 


§  34  Executions  727 

C.  Levy  and  Lien 

§  34.  Sufficiency  of,  effect  and  time  for. 

A  levy  is  the  act  by  which  a  sheriff  sets  apart  and  ap- 
propriates, for  tlie  purpose  of  satisfying  the  command 
of  a  writ  of  execution,  a  part  or  the  whole  of  the  prop- 
erty of  the  person  against  whom  the  execution  issues,^^ 
or,  more  briefly,  it  is  the  taking  possession  of  property 
by  an  officer  under  a  writ ;  ^^  and  it  may  be  laid  down  as 
a  general  principle,  respecting  the  levy  on  goods  and 
chattels,  that  the  acts  of  the  officer  in  asserting  his  rights 
and  divesting  the  possession  of  the  defendant  should  be 
of  such  a  character  as  would  make  him  liable  as  a  tres- 
passer but  for  the  protection  of  the  process.^"  In  mak- 
ing a  levy  upon  personal  property,  the  officer  must  re- 
duce it  to  his  possession  so  far  as  can  be  done  under  the 
circumstances,  though  in  doing  so  it  is  not  necessary  that 
any  notoriety  should  be  given  to  the  act  in  order  to  make 
it  effectual.  What  is  an  actual  possession  sufficient  to 
constitute  a  levy  must  depend  upon  the  nature  of  the 
property,  and,  in  general,  it  may  be  said  that  it  should 
be  such  a  custody  as  will  enable  the  officer  to  retain  and 
assert  his  power  and  control  over  the  property  to  such 

reason  why  the  real   estate  of  bus-  of  homestead  and  statutory  exemp- 

Vjand  and  wife  held  by  them  as  ten-  tions. "      Sanford    v.    Bertrau,    204 

ants   by   the   entireties,   independent  Mich.  244. 

of   homestead  and   statutory  exemp-  28  Lloyd  v.  Wyckoff,  11  N.  J.  L. 

tions,    should    not    be    subjected    to  218;   Burkett  v.  Clark,  46  Neb.  466. 

the    payment   of    their    joint    de^bts.  29  Pracht  v.  Pister,  30  Kan.  573. 

They  own  the  entire  property.     The  30  Quackenbush  v.  Henry,  42  Mich, 

parts    cannot    be    greater   than    the  75;   Drake,  Attachm.  sec.  255a,  cit- 

whole.     They  may  dispose  of  it  by  ing  Bcekman   v.   Lansing,   3   Wend, 

their  joint  action.     Each  is  liable  to  (N.   Y.)    446;    Westervclt   v.   Pinek- 

pay  the  whole  judgment,  and  both  ney,  14  Wend.  (N.  Y.)  123;  Camp  v. 

are  liable  to  pay  any  part  of  it.     As  Chamberlain,  5  Donio   (N.  Y.)   198; 

a  general  proposition  it  may  be  said  Goode    v.    Longmire,    35    Ala.    668; 

that  real  estate  owned  jointly  by  in-  Abrams    v.    Johnson,    65    Ala.    465; 

dividuals  is  subject  to  levy  and  sale  McBurnie  v.  Overstreet,  8  B.  Hon. 

upon  an  execution  running  against  (Ky.)    300;    Allen    v.    MeCalla,    25 

such  owners  jointly,  in  the  absence  Iowa  464. 


728  Executions  §34 

an  extent  that  it  cannot  probably  be  withdrawn  or  taken 
by  another  without  his  knowing  it.^^  In  levying  upon 
machinery  fastened  to  a  building  by  bolts,  it  is  not  neces- 
sary, in  order  to  make  good  or  retain  the  levy,  to  detach 
and  remove  the  property  from  the  building  or  place  in 
which  it  was  found;  ^^  and,  in  levying  upon  growing- 
crops,  a  constructive  possession  only  is  all  that  is  possible 
or  necessary.^'  But,  according  to  the  most  liberal  rule, 
the  levy  must  be  so  made  that  it  identifies  or  gives  the 
means  of  identifying  what  is  levied  upon,  so  that  any 
property  levied  on  may  be  made  chargeable  to  the  officer 
and  property  not  levied  on  cannot  subsequently  be 
claimed.  The  property  must  be  seized  manually  or  by 
the  assertion  of  such  control  as  may  be  made  effectual 
if  necessary.^* 

The  officer  may  enter  upon  the  premises  of  the  execu- 
tion defendant  for  the  purpose  of  levying  upon  his  goods, 
but  in  doing  so  he  should  exercise  a  due  regard  for  the 
rights  of  the  defendant,  and  in  no  case  should  he  oust  him 
from  the  possession  of  the  premises.^^  The  officer  also 
has  no  right  to  break  the  outer  door  of  the  defendant's 
dwelling  for  the  purpose  of  a  levy,  and  a  levy  so  made 
would  be  invalid;  ^^  but,  if  he  has  entered  without  break- 
ing an  outer  door,  he  may  break  any  inner  door  if  neces- 
sary, after  making  demand  that  it  be  opened,^'''  and  he 
may  break  even  an  outer  door  of  a  store  or  other  building 
not  being  a  part  of  the  defendant 's  dwelling.^® 

31  Drake  v.  Attachm.  sec.  256.  (Del.)    246;  People  v.  Hubbard,  24 

32  Patch  V.  Wessels,  46  Mich.  249.  Wend.   (N.  Y.)  369. 

33  Grover  v.  Buck,  M  Mich.  519.  37  Snydacker  v.  Brosse,  51  111.  357. 
Mode  of  levying  on  growing  crops,  38  Haggerty  v.   Wilber,   16   Johns. 

sec  §21,  ante.  (N.    Y.)    287;    Nelson   v.   Van   Ga- 

34  Quackenbush  v.  Henry,  42  Mich.  zelle  Valve  Mfg.  Co.,  45  N.  J.  Eq. 
75.  594. 

SB  Bayne    v.    Patterson,   40    Mich.  He    may    break    down    a    common 

658.  outer    entrance    to    a    store    and    a 

86  Bailey  v.  Wright,  39  Mich.  96;  dwelling.      Stearns    v.    Vincent,    50 

Ilsley  V.  Nichols,  12  Pick.    (Mass.)  Mich.  209. 
270;   Saunders  v.  Milward,  4  Harr. 


§  34  Executions  729 

A  levy  upon  real  estate  does  not  dispossess  the  owner 
as  formerly,  and  it  is  not  necessary  for  the  officer  making 
the  levy  to  enter  upon  the  land,  or  even  to  have  it  in  view, 
the  lien  of  the  execution  being  perfected  under  the  pres- 
ent practice  by  filing  a  notice  of  levy  in  the  office  of  the 
register  of  deeds  of  the  county  in  which  the  land  affected 
is  situated,^®  which  answers  the  same  purpose  as  the  tak- 
ing of  possession  does  in  the  case  of  personal  property.*" 
The  lien  so  obtained  is,  from  the  filing  of  the  notice,  valid 
against  all  prior  grantees  and  mortgagees  of  whose 
claims  the  party  interested  had  not  actual  or  construc- 
tive notice.*^  The  notice  of  levy  should  be  definite  and 
certain,*^  and,  being  an  official  act  required  by  law  and 
intended  for  the  very  purpose  of  enabling  all  persons  to 
know  what  levy  has  been  made,  is  primary  evidence  of 
the  levy,  which,  as  to  purchasers  at  least,  must  be  held 
conclusive  proof  that  nothing  has  been  levied  on  which 
is  not  described  in  it." 

A  levy  may  be  made  at  any  time  from  the  issue  of  the 
writ  to  and  including  the  return  day,  but  not  after- 
wards.** When,  however,  an  officer  has  begun  to  serve 
an  execution  on  or  before  the  return  day,  he  may  com- 
plete the  service  and  make  return  after  the  return  day.** 

Levying  on  exempt  property,*^  on  a  homestead,*''  on 
money  or  evidences  of  debt,*^  or  on  shares  of  stock,*®  is 
noticed  elsewhere. 

39JucI.   Act,  eh.   23,   §83;    Comp.  Whitney,  61  Mich.  518. 

Laws     1915,     §12898;     Campau     v.  « Canipau    v.   Barnard,   25   Mich. 

Barnard,  25  Mich.  381;   Vronian  v.  381. 

Thompson,  51  Mich.  452 ;  First  Nat.  44  Quackenbush  v.  Henry,  42  Mich. 

Bank  v.  Phillpotts,  155  Mich.  331.  75;    Smith  v.  Thompson,  Walk.  Ch. 

40 Ward    v.    Citizens'    Bank,    46  1;   Blair  v.  Compton,  33  Mich.  414; 

Mich.  332.  Evans  v.  Caiman,  92  Mich.  427. 

41Jud.   Act,   ch.   23,    §83;    Comp.  45  Jud.   Act,   ch.   23,    §22;    Comp. 

Laws   1915,   §  12898.  Laws  1915,  §  12837. 

42  Savidge    v.    Seager,    175    Mich.  46  See  Exemptions. 

47;    Campau  v.   Barnard,   25   Mich.  47  See  Homestkads. 

381 ;   Burrowes  v.  Gibson,  42  Mich.  48  See    §  16,  ante. 

121;    Davis    Sewinpr    Mach.    Co.    v.  49  See   §24,  ante. 


730  Executions  §  34 

Form  of  Notice  of  Levy  Upon  Real  Estate  Under  Fieri  Facias 

State  of  Michigan. 

(Title  of  court  and  cause.) 

To  Whom  It  May  Concern : 

Notice  is  hereby  given  that  by  virtue  of  a  writ  of  fieri  facias  issued  out 
of  said  court  in  favor  of  the  said  plaintiff  (or,  defendant),  against  the 
goods  and  chattels,  lands  and  tenements  of  the  said  defendant  (or,  plain- 
tiff), to  me  directed  and  delivered,  I  did,  on  the    day  of    , 

A.  D ,  levy  upon  the  following  described  lands  and  tenements,  to  wit: 

(Describe  the  lands  and  tenements.) 

Dated,  etc. 

S.  T., 
Sheriff  of  said  County. 

§  35.  Levy  on  mortgaged  goods. 

Where  mortgaged  chattels  are  levied  on  on  a  writ 
against  the  mortgagor,  the  officer  may  take  and  retain 
possession  of  the  goods  for  the  time  necessary  before  exe- 
cution sale,^**  notwithstanding  the  mortgage  is  past 
due ;  ^^  and  the  mortgagee  cannot  claim  possession  as 
against  the  officer,  while  he  holds  under  his  levy,  al- 
though the  mortgage  debt  is  due,^^  and  notwithstanding 
the  levy  and  the  debt  on  whicli  it  is  based  are  subsequent 
to  the  mortgage  debt.^^  However,  the  mortgagee  and  the 
officer  may  have  concurrent  possession  of  the  mortgaged 
goods,  the  officer  retaining  custody  until  the  mortgagee's 
sale  and  having  a  right  to  know  the  amount  and  condi- 
tions thereof;  and  when  the  mortgagee  sells  he  can  pro- 
tect the  rights  of  the  officer  as  well  as  his  own.**  The 
levy  is  in  effect  a  levy  on  the  right  of  redemption,**  but 
it  may  be  necessary  to  take  possession  of  distinct  articles 
separately.*^  The  levy  must  be  subordinate  to  the  rights 
of  the  mortgagee,  and  if  the  sale  is  made  witliout  first 
paying  off  the  mortgage  it  must  be  a  sale  of  the  goods  in 

50  Wilson  V.  Montague,  57  Mich.  54  Haynes  v.  Leppig,  40  Mich.  602. 
638;  King  v.  Hubbell,  42  Mich.  597.  66  Bayne    v.    Patterson,    40    Mich. 

51  Cary  v.  Hewitt,  26  Mich.  228.  658. 

62  Nelson  v.  Ferris,  30  Mich.  497.  56  Harvey  v.  McAdams,  32  Mich. 

53  Wilson   V.   Montague,   57   Mich.      472. 
638. 


§  36  Executions  731 

gross,  subject  to  the  mortgagee's  lien.*''  The  execution 
creditor  need  not  pay  off  the  mortgage  as  a  condition 
precedent  to  -an  execution  sale  thereof  against  the  mort- 
gagor;** but  the  interest  of  the  mortgagee  cannot  be 
disturbed  by  an  execution  creditor  unless  he  pays  the 
mortgagee  or  makes  a  tender,  which  he  may  do  at  any 
time  before  sale.*^  If  the  value  of  mortgaged  property 
does  not  exceed  the  mortgage,  a  levy  under  execution 
confers  no  interest.^" 

§  36.  Duty  of  officer  in  caring  for  property  before  sale. 

Having  made  the  levy,  it  is  the  duty  of  the  officer  to 
keep  the  property  under  sufficient  safeguards  for  its 
protection  until  it  can  be  offered  for  sale.  By  virtue  of 
the  levy,  he  is  vested  with  a  special  interest  in  the  goods 
levied  upon,  and  is  liable  for  their  value  in  case  they  are 
lost  through  his  fault,  and  may,  by  the  usual  legal  reme- 
dies, protect  his  special  interest  in  case  it  is  disturbed.^^ 
His  custody  of  the  goods  and  liability  for  their  safe- 
keeping is  in  the  nature  of  a  bailment.  He  becomes  bailee 
for  all  the  parties  interested.  He  must  use  due  diligence 
to  keep  them  safely  to  satisfy  the  execution,  but  he  is  not 
an  insurer,  and  is  not,  like  a  common  carrier,  answerable 
for  a  loss  of  the  goods  by  fire.  He  is  not  responsible  be- 
yond reasonable  watchfulness  and  precaution  and  the 
employment  of  pro])er  means  of  security.  He  should, 
however,  be  held  to  greater  care  than  owners  usually 
take  of  their  property,  for  the  reason  that  goods  so  held 
are  more  liable  to  be  molested  than  goods  not  under 
seizure. "^^ 

67  Smith     v.     Menominee     Circuit  60  Stack  v.  Olmsted,  127  Mich.  359. 

Judge,  53  Mich.  560.  61  Drake  Attachm.  sees.  290,  291. 

58  King  V.  Hubbell,  42  Mich.  597.  See   Jud.   Act,   ch.   23,   §  50 ;    Comp. 

Contra,   Worthington   v.    Hanna,    23  Laws   1915,    §12865. 

Mich.  530.  62  Fletcher    v.    Aldrich,    81    Mich. 

69  Wilson   V.  Montague,  57   Mich.  186. 
638. 


732  Executions  §  36 

The  officer  must  do  no  act  and  suffer  no  omission  which 
will  amount  to  an  abandonment  of  the  levy.  To  this  end, 
it  is  necessary  that  the  control  of  the  property  from  the 
levy  to  the  sale  be  continuous.  It  is  not  indispensable 
that  the  goods  remain  in  the  actual  and  continued  posses- 
sion of  the  officer,  nor  that  an  assistant  of  the  officer  be 
left  in  possession  of  them,  nor  that  they  be  removed. 
Where  the  officer  does  not  himself  keep  the  goods  in  his 
actual  possession,  it  is  customary  that  he  place  them  in 
the  charge  of  a  custodian  or  keeper,  or  deliver  them  to  a 
receiptor  for  their  delivery  to  him  on  demand;  but  they 
may  be  left  in  the  custody  of  the  defendant  at  the  risk  of 
the  officer.  The  possession  of  the  receiptor  is  in  law  the 
possession  of  the  sheriff,  and,  accordingly,  a  seizure  of 
the  goods  from  the  receiptor  is  considered  as  being  a 
seizure  from  the  sheriff.^^  As  between  the  receiptor  and 
the  sheriff,  if  the  former  fail  to  deliver  the  goods  to  the 
latter  on  demand,  he  is  liable  to  the  sheriff  in  an  action 
for  conversion.^* 

An  officer  who  has  levied  upon  a  quantity  of  wheat  in 
the  mow  has  no  authority  to  thresh  it  before  selling  it,^' 
nor  has  he  any  authority  to  work  animals  which  he  has 
taken  on  execution  to  pay  the  expenses  of  keeping  them.^^ 

§  37.  Effect  of  and  remedy  for  excessive  levy. 

It  is  the  duty  of  the  officer  to  levy  upon  such  a  quan- 
tity of  the  defendant's  property  as  will  be  sufficient  to 
satisfy  the  execution  and  the  costs  of  the  levy  and  sale, 
if  so  much  can  be  found  not  exempt  from  execution,  but 
he  should  not  seize  an  excessive  amount.  The  officer  thus 
owes  a  duty,  on  the  one  hand,  to  the  plaintiff  to  seize 
enough,  and,  on  the  other,  to  the  defendant  not  to  seize 
too  much.     The  officer  is  vested  with  considerable  dis- 

68  Mayhue  v.  Snell,  37  Mich.  305.  65  Stillman  v.  Gibbs,  40  Mioh.  42. 

64Burk   v.   Webb,   32   Mich.   173;  66  Bushey  v.  Baths,  45  Mich.  181. 

Bowen  v.  Gulp,  36  Mich.  224. 


§  39  Executions  733 

cretion  in  the  matter,  and  his  levy  will  not  be  open-  to 
criticism  as  being  excessive,  unless  it  be  grossly  exces- 
sive, especially  where  the  property  levied  upon  is  real 
estate.  If  a  levy  be  excessive,  it  is  not  for  that  reason 
void,  but  merely  voidable,  and  the  remedy  of  the  execu- 
tion defendant  is  by  motion,  before  sale,  to  the  court 
from  which  the  process  emanated,  to  set  the  levy  aside. ^' 

§  38.  When  levy  may  be  made  and  service  of  writ  com- 
pleted. 

A  levy  must  be  made  on  or  before  the  day  on  which  the 
execution  is  made  returnable;  otherwise  it  will  be  in- 
valid.^^  If  it  be  made  within  that  time,  the  service  of 
the  writ  may  be  completed  by  a  sale  of  the  property  after 
that  day.^®  Where  the  officer  has  commenced  the  execu- 
tion of  the  writ  before  the  return  day,  he  may  complete 
it  afterwards;  and  so,  where  he  has  commenced  its  execu- 
tion during  his  official  term,  he  may  complete  it  after  his 
term  of  office  has  ceased.  Such  was  the  rule  at  common 
law,  and  it  has  been  recognized  by  statute  in  Michigan 
and  many  of  the  other  states.''^" 

§  39.  Indemnity  bonds. 

Under  an  execution,  an  officer  is  authorized  to  seize 
only  the  property  of  the  execution  debtor  not  exempt 
from  execution,  and  only  so  far  is  he  protected  by  his 
w^rit.  If  he  exceeds  his  authority  by  seizing  the  prop- 
erty of  a  third  person  or  property  of  the  execution  debtor 
that  is  exempt,  he  becomes  liable  to  the  party  aggrieved 
and  enjoys  no  protection  in  such  case  by  the  writ.  Be- 
tween this  liability  on  the  one  side  and  the  duty  to  seize 
the  property  of  the  defendant  according  to  the  exigency 
of  the  writ  on  the  other,  the  officer  is  sometimes  per- 

67Campau    v.    Godfrey,    18   Mich.  69  Smitli  v.  Thompson,  Walk.  Ch. 

27.  1. 

68  Quackcnbush  v.  Henry,  42  Mich.  70  Blair  v.  Compton,  33  Mich.  414. 

75;  Blair  v.  Compton,  33  Mich.  414. 


734  Executions  §  39 

plexed  as  to  what  course  to  pursue  in  cases  where  the  real 
ownership  of  the  property  is  in  doubt,  or,  if  that  be  not 
in  doubt,  where  it  is  uncertain  whether  the  property  is 
such  as,  under  the  circumstances,  is  exempt  from  execu- 
tion. To  alleviate  this  embarrassment  on  the  part  of  the 
officer,  it  is  provided  by  statute  that,  whenever  there  is 
any  reasonable  doubt  as  to  the  ownership  by  a  judgment 
debtor  of  any  goods  or  chattels  or  as  to  their  liabilitj^  to 
be  taken  on  execution,  the  officer  holding  the  execution 
may  require  of  the  judgment  creditor  sufficient  security 
to  indemnify  him  for  taking  such  goods  and  chattels 
thereon;  and,  if  such  security  be  refused,  the  officer  will 
not  be  liable  for  omitting  to  take  si^ch  goods  or  chattels.'''^ 

Form  of  Bond  of  Indemnity  to  Sheriff  for  Levying  Under  an  Execution 

Know  all  men  by  these  presents,  that  we,  A.  B.,  as  principal,  and  E.  F. 
and  G.  H.,  as  sureties,  are  held  and  firmly  bound  unto  S.  T.,  sheriff  of  the 

county  of ,  in  the  sum  of dollars,  lawful  money,  to  be  paid  to 

the  said  S.  T.,  or  his  certain  attorney,  executors,  administrators  or  assigns, 
for  which  payment,  well  and  truly  to  be  made,  we  bind  ourselves,  our,  and 
each  of  our,  heirs,  executors,  and  administrators,  jointly  and  severally, 
firmly  by  these  presents. 

Sealed  with  our  seals,  and  dated  this day  of ,  in  the  year 

one  thousand  nine  hundred   

Whereas  the  above-bounden  A.  B.,  on  the   day  of  ,  A.  D. 

,  obtained  a  judgment  in  the  circuit  court  for  the  county  of 

against   C.  D.   for  the   sum   of    dollars,  damages  and   costs,  upon 

which  an  execution  was,  on  the day  of ,  A.  D ,  issued 

out  of  said  court,  directed  and  delivered  to  the  said  S.  T.,  sheriff  as  afore- 
said, commanding  him  that,  of  the  goods  and  chattels  of  the  said  C.  D.,  he 
should  cause  to  be  made  the  damages  and  costs  aforesaid; 

And  whereas  certain  goods  and  chattels  appear  to  belong  to  the  said 
C.  D.,  but  are  claimed  by  W.  S.,  which  said  goods  are  described  as  follows: 
'Here  describe  the  property:) 

Now,  the  condition  of  this  obligation  is  such  that  if  the  above-bounden 
J  .  B.  shall  well  and  truly  save  and  keep  harmless  and  indemnify  the  said 
S  T.  and  all  persons  assisting  him  in  and  about  the  taking  of  the  said 
goods  and  chattels  under  and  by  virtue  of  the  said  execution  from  all  dam- 
ages, costs,  actions,  judgments,  decrees,  and  executions  that  shall  at  any 

71Jud.  Act,  ch.  23,  §18;  Comp.  tachment  levy.  Smith  v.  Cicotte,  11 
Laws  1915,  §  12833.  Mich.  383. 

Rule    applies   equally    well    to   at- 


§  41  Executions  735 

time  arise,  be  brought  or  rendered  against  him  or  them  or  any  of  them  for 
the  taking  and  making  sale,  under  said  execution,  of  the  said  goods  and 
chattels,  or  any  part  thereof,  which  he  may  deem  the  property  of  the 
said  C.  D.,  and  in  entering  any  land,  building,  or  other  premises  for  the 
purpose  of  taking  said  goods  and  chattels,  or  any  part  thereof,  then  this 
obligation  is  to  be  void;  otherwise  to  remain  in  full  force  and  effect. 

A.  B.   [L.  S.] 

E.  F.   [L.   S.] 

(Add  justification.)  G.  H.   [L.  S.] 

§  40.  Priority  of  executions. 

If  there  be  several  executions  issued  out  of  a  court  of 
record  against  the  same  defendant,  the  one  wliicli  has 
been  first  delivered  to  the  officer  to  be  executed  will  have 
preference,  notwithstanding  a  levy  may  have  been  first 
made  under  another  execution;  but,  if  a  levy  and  sale  of 
any  goods  or  chattels  have  been  made  under  such  other 
execution  before  an  actual  levy  under  the  execution  first 
delivered,  such  goods  and  chattels  cannot  be  levied  upon 
or-sold  by  virtue  of  the  first  execution;  and,  as  between 
one  or  more  executions  and  one  or  more  attachments 
against  the  property  of  the  same  person,  the  rule  is  the 
same.  But  any  execution  or  attachment  issued  out  of  a 
court  not  of  record,  if  actually  levied,  wdll  have  prefer- 
ence over  any  other  execution  or  attachment  issued  out 
of  any  court,  whether  of  record  or  not,  which  has  not 
been  previously  levied.'^ 

§  41.  Notice  of  levy  on  real  estate. 

The  statute  declares  that  no  levy  by  execution  on  real 
estate  shall  be  valid  against  bona  fide  conveyances  made 
subsequent  to  the  lev}^  until  a  notice  thereof,  containing 
the  names  of  the  parties  to  the  execution,  a  description  of 
the  premises  levied  upon  and  the  date  of  the  levy,  is  filed 
by  the  officer  making  the  same  in  the  office  of  the  register 
of  deeds  of  the  county  where  the  premises  are  situated, 

72Jud.  Act,  ch.  23,  §§7-9;   Comp. 
Laws  191.'5,  §S  12822-12824. 


736  Executions  §  41 

that  such  levy  shall  be  a  lien  thereon  from  the  time  when 
such  notice  is  so  deposited,  and  that  the  lien  thus  ob- 
tained shall,  from  the  filing  of  the  notice  of  levy,  be  valid 
against  all  prior  grantees  and  mortgagees  of  whose 
claims  the  party  interested  shall  not  have  actual  or  con- 
structive notice."  A  notice  of  levy  in  the  case  of  real 
estate  answers  the  same  purpose  as  the  taking  possession 
of  the  property  in  the  case  of  personalty.''^* 

It  is  the  duty  of  the  register  of  deeds  to  enter  upon  the 
notice  of  levy  so  filed  with  him  a  minute  of  the  time  of 
receiving  it  and  to  record  it  in  a  book  to  be  kept  for  that 
purpose.  He  is  required  to  make  an  index  to  such  record, 
in  such  manner  as  will  be  convenient  for  public  reference, 
of  the  names  of  parties  to  the  execution  as  stated  in  the 
notice,  and  is  entitled  to  receive  for  making  and  filing 
the  notice  the  sum  of  fifty  cents,  and,  for  recording  the 
notice,  the  same  fees  as  for  recording  notices  of  the 
pendency  of  suits  in  chanceiy.  These  fees  the  officer 
making  the  levy  should  add  to  the  costs  to  be  collected 
by  his  execution  and  collect  them  in  like  manner.'* 

§  42.  Effect  on  leasehold  interests. 

In  regard  to  leasehold  interests  in  lands  levied  upon 
by  execution,  upon  the  filing  of  notice  of  levy,  it  will  be 
notice  of  all  the  rights  acquired  by  the  plaintiff  and  pur- 
chaser at  the  sale,  and  the  plaintiff  in  execution  or  his 

73Jud.   Act,   ch.   23,   §83;    Comp.  priority    accorded    to    a    conveyance 

Laws  1915,  §12898;  Savidge  v.  Sea-  duly  recorded;  but  possession  at  the 

ger,    175    Mich.    47,    holding    notice  time  of  levy  of  a  tenant  in  common 

insufficient  where  name  of  plat  was  is    notice    of   more   than   his    record 

wrong,    and    also    that    description  title.      Schmidt    v.    Steinbach,    193 

sufficient   in  deed  is  not  necessarily  Mich.  640.     To  same  effect,  Atkinson 

sufficient   in  notice;   Corey  v.  Smal-  v.  Akin,  197  Mich.  289. 
ley,  106  Mich.  257;   Lachelt  v.  Mc-  74  Ward    v.     Citizens'    Bank,    46 

Inerney,     185    Mich.    413,     holding  Mich.  332 ;  First  Nat.  Bank  v.  Phill- 

judgment  creditor  had  no  actual  no-  potts,  155  Mich,  331. 
tice;    Gardner  v.  Mason,  130  Mich.  76  Jud.   Act,  ch.   23,   §83;    Comp. 

436.  Laws   1915,    §  12898. 

The  levy  is  thereby  given  the  same 


§  44  Executions  737 

attorney  is  thereafter  entitled  to  reasonable  notice  from 
the  lessor  in  case  the  lessor  intends  to  forfeit  the  lease  for 
any  default  made  by  the  lessee  or  persons  claiming 
under  him,  to  the  end  that  the  plaintiff  shall  have  a  rea- 
sonable opportunity  to  comply  with  the  terms  of  the 
lease  and  save  a  forfeiture;  and,  in  case  the  plaintiff  or 
execution  jiurchaser  is  compelled  to  pay  any  rent  due  at 
the  date  of  the  sale  on  execution  or  previous  thereto,  no 
redemption  will  be  allowed  until  the  amount  so  paid  is 
refunded  to  the  plaintiff  or  execution  purchaser,  with  in- 
terest, in  addition  to  the  amount  for  which  such  lease- 
hold interests  have  been  sold  on  execution.''''^ 

§  43.  How  long  levies  on  land  endure. 

It  is  now  provided  by  statute  that  every  levy  by  execu- 
tion on  real  estate  shall  cease  to  be  a  lien  thereon  and 
shall  become  and  be  void  at  and  after  tlie  expiration  of 
five  years  from  the  making  of  the  levy,  unless  such  real 
estate  be  sooner  sold  thereon."  Before  the  enactment  of 
this  statute,  no  limitation  was  put  upon  the  duration  of  a 
lien  by  execution  levy  on  land,  and  it  was  held  that  the 
lien  was  not  lost  by  delay  in  proceeding  to  sale,  where 
no  fraudulent  purpose  was  shown  on  the  part  of  the 
execution  creditor.'''* 

The  time  during  which  a  sale  was  enjoined  is  not  to  be 
included  in  figuring  the  five  years."'^^ 

§  44.  Bill  in  aid  of  levy. 

Where  the  equitable  interest  of  a  judgment  debtor  is 
levied  on,  the  judgment  creditor  may  file  a  bill  to  ascer- 
tain the  rights  and  equities  of  the  debtor.*"    The  title  of 

76  Jnd.   Act,  eh.  23,   §142;   Comp.  tioiis   in    the   Tiioantinie.      Mosher   v. 

Laws  1915,  §  12957.  Borden,  201  Mich.  106. 

77Ju(l.   Act,   eh.   2.3,   §84;    Comp.  78  Ward    v.     Citizens'    Bank,    46 

Laws  1915,  §12899;  Bliss  v.  Slater,  Mich.    ,332;    Ludeman    v.    Hirth.   96 

144  Mieh.  648.  Mieh.  17. 

Five  year  limit  is  not  affected  by  79  Steele  v.  Bliss,  166  Mich.  59.3. 

judgment    being   barred    by    limita-  SO.Jud.    Act,   cli.    23.    §82:    Conu». 
1  Abbott— 47 


738  Executions  §  44 

a  mortgagee  of  land  before  foreclosure  is  an  equitable 
title  rather  than  a  legal  one,  and  hence  within  this  stat- 
ute.*^ Where  a  judgment  creditor  seeks  to  levy  on  land 
fraudulently  conveyed  by  the  debtor,  he  must  strictly 
comply  with  this  statute.'*^  The  failure  of  a  judgment 
creditor  to  proceed  under  this  statutoiy  provision  is 
fatal.^'  Where  the  legal  title  to  property  has  been  trans- 
ferred by  the  execution  debtor  before  a  levy,  the  sheriff 
cannot  file  a  bill  in  aid  of  the  levy,  since  the  remedy  is 
available  only  to  a  creditor  or  his  legal  representatives.'* 
So  where  defendant  in  an  attachment  suit  is  not  served 
and  does  not  appear,  plaintiff  cannot  maintain  a  bill  in 
aid  of  his  execution.®^  A  judgment  which  is  voidable  but 
not  void  is  a  sufficient  foundation  for  a  bill  in  aid  of  exe- 
cution.*^ Execution  purchasers  cannot  file  a  bill  to  set 
aside  a  fraudulent  conveyance  of  the  property  before  the 
judgment.®'''  A  return  terminates  the  lien  of  the  levy,  so 
that  a  bill  in  aid  of  execution  will  not  thereafter  lie.*' 
The  purchaser  of  the  interest  of  the  grantor  in  a  deed  ab- 
solute intended  as  a  mortgage  takes  a  legal  interest  or 
title  and  is  not  obliged  to  file  his  bill  in  aid  of  execution 
to  ascertain  the  equities  of  the  parties.** 

§  45.  Waiver  or  abandonment  of  levy. 

An  officer  may  waive  or  relinquish  a  levy,*°  but  an 
abandonment  is  not  necessarily  implied  by  a  return  in- 
dorsed on  the  writ  stating  the  fact  of  levy  and  that  the 

Laws    1915,    §  12897.      See   Lipp    v.  84  Hackley  v.  Mack,  60  Mich.  591. 

Jacobs,  198  Mich.  357,  and  Stace's  86  Bliss  v.  Tyler,  159  Mich.  502. 

Mich.  Chancery  Practice,  §  503.  86  Griffin   v.    McGavin,    117    Mich. 

81  Gordon    v.    Township    of    Bur-  372. 

leigh,  153  Mich.  493.  87Cranson  v.  Smith,  47  Mich.  189. 

82  Jcnison  v.  Eankin,  57  Mich.  49 ;  88  Studley  v.  Ann  Arbor  Sav. 
Newcomb  v.  Montague,  194  Mich.  74.       Bank,  112  Mich.  181. 

See   also   L.    Starks   Co.   v.   Eppink,  89  Flyun  v.  Holmes,  145  Mich.  606. 

185  Mich.  233.  90  Weber  v.  Henry,  16  Mich.  399 ; 

83  Kunze    v.    Solomon,    126    Mich.  Cohen  v.  Henry,  16  Mich.  405. 
290. 


§  47  Executions  739 

writ  was  returned  as  commanded  by  plaintiff.^^  Whether 
an  officer  has  waived  his  levy  of  execution  is  ordinarily  a 
question  for  the  jury,®*^  and  the  taking  out  of  a  second 
execution  is  not  conclusive  of  an  abandonment  of  the 
prior  execution.**  Delay  in  advertising  the  sale  is  not 
necessarily  an  abandonment.** 

§  46.  Claims  of  third  persons  to  property  levied  on. 

At  common  law,  a  third  person  cannot  intervene  and 
claim  property  levied  on,  and  there  is  no  statute  in  this 
state  authorizing  such  procedure.*^  AVhere  a  third  per- 
son claims  title  or  rights  in  property  levied  on  or  sold  as 
the  property  of  another,  he  may  bring  trover  *^  or  re- 
plevin,*'' against  the  officer;  and  one  claiming  rights  in 
property  sold  on  execution  is  not  precluded  by  the  re- 
turn of  the  officer  from  showing  the  real  facts  as  to  the 
validity  of  the  levy  and  sale.*®  When  an  officer  claims 
property  under  an  execution,  he  must  show  that  the  exe- 
cution was  warranted  by  the  judgment,  where  sued 
therefor.** 

D.  Sale 
§  47.  In  general. 

There  are  certain  rules  applicable  both  to  sales  of  real, 
and  to  sales  of  personal,  property,  while  some  of  the  stat- 
utes relate  only  to  one  or  the  other  kinds  of  sales. 

630  (extent  and  validity  of  oflScor's 
lien  are  questions  for  the  jury)  ; 
Hanselman  v.  Kegel,  60  Mich.  540; 
Carew  v.  Matthews,  41  Mich.  576 
(suflSciency  of  plea  in  abatement)  ; 
McMillan  v.  Lamed,  41  Mich.  521 
(execution  creditor  properly  joined 
96  Peterson  v.  Swenningston,  178  as  defendant).  See  also  Grand  Kap- 
Mich.  294,  297.  ids  Brewing  Co.  v.  Pettis,  159  Mich. 

96  See  Freedman  v.  Campfield,  92      679. 
Mich.    118;    Tunningly    v.    Butcher,  98  Winfield  v.  Adams,  34  Mich.  437. 

106  Mich.  35,  instructions  to  jury.  99  Gidday      v.      Witherspoon,      35 

97 O'Connor  v.   Gidday,   63  Mich.      Mich.  368. 


91  Vroman  v. 

Thompson,  51  Mich. 

452. 

92  Vanosdall 

V.     Hamilton,      118 

Mich.  533. 

93  Friyer      v. 

McNaughton,     110 

Mich.  22. 

94  Baldwin  v. 

Talbot,  46  Mich.  19. 

740  Executions  §47 

The  sale  may  be  made  by  the  successor  in  office  of  the 
officer  making  the  levy  ^  or  by  the  officer  making  the  levy 
after  his  term  has  expired.^ 

The  law  in  force  at  the  time  of  the  sale,  and  not  the 
law  in  force  at  the  time  of  the  rendition  of  judgment, 
controls  the  conduct  of  the  sale.^ 

§  48.  Time  of  sale. 

It  is  the  duty  of  the  sheriff,  in  serving  a  writ  of  execu- 
tion, to  conduct  the  business  from  beginning  to  end  with 
an  intelligent  view  of  the  respective  interests  of  all  the 
parties  concerned,  and  especially  in  such  a  way  as  not 
needlessly  to  injure  the  defendant.  He  is  vested  with 
some  discretion  as  to  when  he  shall  bring  the  property  on 
for  sale,  and  does  not  become  a  trespasser  ab  initio  by 
keeping  it  a  little  longer  than  is  absolutely  necessary  for 
giving  notice  and  making  sale.*  The  reasons  and  cir- 
cumstances of  the  particular  case  must  largely  govern  in 
questions  of  this  kind. 

The  time  of  sale  is  fixed  by  the  notice  of  sale,  and  a  sale 
before  the  time  advertised  is  void.^  A  sale  made  after 
nine  o'clock  at  night  has  been  held  invalid  because  of 
the  hour.''  In  case  of  a  sale  of  real  estate,  the  statute 
fixes  the  time  for  sale  as  between  nine  a.  m.  and  the  set- 
ting of  the  sun.'' 

Growing  crops  or  unharvested  grain  cannot  be  sold 
until  ripe  or  fit  to  be  harvested,®  but  perishable  property 
should  be  sold  as  soon  as  practicable.^ 

1  Taylor    v.    Boardman,    2.'>    Mich.  6  McNaugliton      v.      McLean,      73 

317.  Mich.  250. 

2Vroman  v.   Thompson,  51   Mich.  7  Jud.    Act,    eh.    23,    §87;    Comp. 

452;  Blair  v.  Compton,  33  Mich.  414.  Laws   1915,   §  12902. 

3  Crane  V.  Hardy,  1  Mich.  56.  8  Jud.    Act,    ch.    23,    §55;    Comp. 

4  Bird    v.    Perkins,   33    Mich.    28;  Laws  1915,  §  12870. 
Stilson  V.  Gibbs,  40  Mich.  42.  9  See  §  52,  post. 

5  Wienskauwski     v.     Wisncr,     114 
Mich.  271. 


§  50  Executions  "^^l 

§  49.  Place  of  sale. 

Real  estate  must  be  sold  on  execution  at  the  court 
house  in  the  county  where  located."  Personal  property 
must  be  sold  in  the  county  to  the  sheriff  of  which  the  exe- 
cution was  issued. ^^ 

§  50.  Notice  of  sale. 

In  case  of  personal  property,  it  is  provided  by  statute 
that  no  sale  of  any  goods  or  chattels  can  be  made  by 
virtue  of  an  execution,  unless  at  least  ten  days'  previous 
notice  of  such  sale  has  been  given  by  fastening  up  writ- 
ten or  printed  notices  thereof  in  three  public  places  in 
the  city  or  township  where  the  sale  is  to  be  had,  specify- 
ing the  time  and  place  when  and  where  the  same  is  to  be 
had.^^  In  addition,  where  the  execution  is  against  any 
''turnpike  or  other  corporation  authorized  to  receive 
toll,"  certain  special  provisions  are  applicable." 

In  case  of  real  estate,  notice  of  the  time  and  place  of 
holding  the  sale  is  required  by  statute  to  be  given  as 
follows:  1.  A  written  or  printed  notice  thereof  must 
be  fastened  up  in  three  public  places  in  the  township  or 
city  where  the  real  estate  is  to  be  sold,  six  weeks  previous 
to  the  sale,  and,  if  the  sale  is  to  be  made  in  a  township  or 
city  different  from  that  in  which  the  premises  to  be  sold 
are  situated,  then  such  notice  must  also  be  fastened  up  in 
three  public  places  in  the  township  in  which  the  premises 
are  situated.  2.  A  copy  of  such  notice  must  be  published 
once  in  each  week  for  six  successive  weeks  in  a  news- 
paper printed  in  the  county  in  which  the  real  estate  is 
to  be  sold,  if  there  be  one.  3.  If  there  be  no  newspaper 
printed  in  such  county,  then  such  notice  must  be  pub- 
lished once  in  each  week  for  six  successive  weeks  in  some 

lOJud.   Act,   ch.   23,   §87;    Comp.  13  Jud.   Act,  eh.   23,   §66;    Comp. 

Laws  1915,  §  12902.  Laws  1915,  §  12881. 

11  Baker  v.  Casey,  19  Mich.  220. 

12  Jud.   Act,   ch.   23,   §  51 ;    Comp. 
Laws  1915,  §  12866. 


742  Executions  §  50 

newspaper  printed  in  an  adjoining  county.^*  In  every 
such  notice,  the  real  estate  to  be  sold  must  be  described 
with  common  certainty,  by  setting  forth  the  name  or 
number  of  the  township  in  which  it  is  situated  and  the 
number  of  the  lot  or  by  some  other  appropriate  descrip- 
tion of  the  premises.^^ 

Form  of  Notice  of  Sale  of  Personal  Property 
NOTICE  OF  SALE 

Notice  is  hereby  given  that,  by  virtue  of  a  writ  of  fieri  facias  issued  out 

of  the  circuit  court  for  the  county  of ,  in  favor  of  A.  B.  against  the 

goods  and  chattels,  land  and  tenements  of  C  D.  in  said  county,  to  me  di- 
rected and  delivered,  I  did,  on  the day  of ,  A.  D ,  levy 

upon  and  take  the  following  described  goods  and  chattels,  belonging  to  the 
said  C.  D.,  to  wit:    (Here   describe  the  property;)    all  of  which  I  shall 

expose  for  sale  at  public  vendue,  to  the  highest  bidder,  at   ,  on  the 

day  of ,  A.  D ,  at o  'clock  in  the noon. 

Dated,  etc. 

S.  T., 

J.  K.,  Attorney  for  Plaintiff  (or.  Defendant).  Sheriff. 

Business  address:   ,  Mich. 

14  Jud.  Act,  ch.   23,    §  85 ;    Comp.  the   want    of   notice,   or   the   taking 

Laws  1915,  §  12900.  down  or  defacing  the  same,  does  not 

The  ofl&cer  is  liable  to  the  party  affect  the   validity   of  a  sale  to   a 

injured  in  five  hundred  dollars  dam-  purchaser  in  good  faith,  and  without 

ages,    besides    the    actual    damages  notice  of  the  omission,  taking  down, 

proven  on  the  trial,  if  he  sell  with-  or  defacing.    Jud.  Act,  ch.  23,  §§  88- 

out  the  previous  notice  required  by  90;     Comp.    Laws    1915,     §§12903- 

law,  or  otherwise  than  in  the  man-  12905. 

ner  prescribed   by   the   statute.     If  Sheriff's  deed  not  invalid  because 

any  person  shall  take  down  or  de-  his  return  fails  to  show  that  notices 

face  any   notice  of   a  sale   of   real  of    sale    were    duly   posted.      Grand 

estate,  put  up  by  any  officer,  previ-  Rapids   Nat.   Bank   v.   Kritzer,   116 

ous  to  the  day  of  sale  therein  speci-  Mich.  688. 

fied,  unless  upon  satisfaction  of  the  16  Jud.   Act,   ch.   23,    §86;    Comp. 

execution   by   virtue    of   which    such  Laws    1915,    §12901;    Burrowes    v. 

notice  shall  have  been  given,  or  upon  Gibson,  42  Mich.  121;   Bcysehlag  v. 

the  consent  of  the  party  suing  out  Van  Wagoner,  46  Mich.  91. 

such  execution,  and  of  the  defendant  Affidavit  of  publishers  is  sufficient 

therein,  such  person  shall  be  liable  to    prove   newspaper  publication    of 

therefor  to  the  party  in  whose  favor  notice  of  sale.     Vroman  v.  Thomp- 

such    execution    was    issued,    in    the  son,  51  Mich.  452. 
sum  of  fifty  dollars  damages.     But 


§  51  Executions  743 

Form  of  Notice  of  Sale  of  Real  Estate 
NOTICE  OF  SALE 

Notice  is  hereby  given  that,  by  virtue  of  a  writ  of  fieri  facias  issued 

out  of  the  circuit  court  for  the  county  of ,  in  favor  of  A.  B.,  against 

the  goods  and  chattels,  lands  and  tenements,  of  C.  C,  in  said  county,  to  me 

directed  and  delivered,  I  did,  on  the   day  of A.  D.   .' , 

levy  upon  and  take  all  the  right,  title  and  interest  of  the  said  C.  D.  in  and 
to  the  following  described  lands,  to  wit:  (Here  describe  the  property;)  all 
of  which  I  shall  expose  for  sale  at  public  vendue,  to  the  highest  bidder,  at 

the  front  door  of  the  court  house,  at ,  in  the  said  county  (specifying 

the  building  where  the  circuit  court  is  holden  in  the  county  in  which  the 
real  estate  is  situate,  and  adding;    that   being  the  place  of  holding  the 

circuit  court  within  said  county),  on  the    day  of   ,  next,  at 

0  'clock  in  the noon  (name  some  time  between  the  hour  of 

nine  o'clock  in  the  morning  and  the  setting  of  the  sun). 

Dated,  etc. 

S.  T., 

.   _     .  Sheriff. 

J.  K.,  Attorney. 

Business  address :   ,  Mich. 

§  51.  Postponement  or  adjournment  of  sale. 

If,  at  the  time  appointed  for  the  sale  of  any  real  or 
personal  property  on  execution,  the  officer  deems  it  ex- 
pedient and  for  the  interest  of  all  persons  concerned  to 
postpone  the  sale  for  want  of  purchasers  or  other  suffi- 
cient cause,  he  may  postpone  it  from  time  to  time  until 
it  has  been  completed.  In  every  such  case,  he  must  make 
public  declaration  thereof  at  the  time  and  place  previous- 
ly appointed  for  the  sale;  and,  if  the  postponement  be 
for  a  longer  time  than  twenty-four  hours,  notice  thereof 
must  be  given  in  the  same  manner  as  the  original  notice 
of  the  sale  was  required  to  be  given. ^^ 

In  case  of  a  sale  of  real  estate,  the  sheriff  or  other  offi- 
cer making  the  sale  has  power  to  adjourn  the  sale  from 
time  to  time  for  a  reasonable  cause.  If  the  adjournment 
be  for  more  than  one  week,  he  is  required  to  give  notice 
of  it  in  the  newspaper  in  which  the  original  notice  was 

16  Jud.   Act,   ch.   23,    §  5?, ;    Comp. 
Laws  1915,  §  12868. 


744  Executions  §  51 

printed,  and  immediately  following  the  same,  and  must 
continue  the  publication  of  both  such  notices  during  the 
time  for  which  the  sale  is  adjourned;  but  he  is  not  re- 
quired to  post  any  notice  of  the  adjourned  sale  except  at 
the  place  where  it  is  to  be  made.^' 

§  52.  Sale  of  perishable  property. 

AVhenever  the  sheriff,  by  virtue  of  an  execution  issued 
by  a  court  of  record,  levies  upon  any  peaches,  black- 
berries, raspberries,  strawberries  or  other  perishable 
property,  it  is  his  duty  to  proceed  to  sell  the  same  at 
such  time,  place  and  manner  as  the  court  from  wliich  the 
execution  issued  orders."  In  such  order,  the  court  should 
direct  that  notice  of  the  time  and  place  of  sale  be  given 
to  the  defendant  or  his  agent  and  how  such  notice  shall 
be  given. ^^ 

§  53.  How  sale  conducted. 

No  personal  property  should  be  exposed  for  sale  on 
execution  unless  the  property  is  present  and  within  the 
view  of  those  attending  the  sale,  and  it  must  be  offered 
for  sale  in  such  lots  or  parcels  as  are  calculated  to  bring 
the  highest  price.^° 

A  sale  of  personal  property  not  within  the  bailiwick 
of  the  sheriff,  nor  within  the  view  of  the  bidders,  is  in- 
valid and  conveys  no  title  to  the  purchaser.^^  Thus,  a 
sale  of  a  growing  crop  of  corn  made  at  a  place  half  a 
mile  distant,  and  from  which  the  property  sold  could  not 

njud.   Act,   eh.   23,    §85;    Comp.  116;  Eowan  v.  Eedfeld,  31  Ark.  648; 

Laws   1915,   §12900.  Gaskill    v.    Aldrich,    41    Ind.    338; 

18Jud.    Act,    ch.    23,    §§56,    57;  Ainsworth  v.  Greenle,  3  Murph.   (N. 

Comp.  Laws  1915,  §§12871,  12872.  C.)    470;    Tibbetts  v.   Jageman,   58 

19Jud.   Act,   ch.   23,    §57;    Comp.  111.43, 

Laws  1915,  §  12872.  Sale  is  voidable  but  not  void  where 

20  Jud.  Act,  ch.  23,  §  52 ;  Comp.  personal  property  is  not  present  at 
Laws  1915,   §  12867.  place  of  sale.    Winfield  v.  Adams,  34 

21  Baker  v.  Casey,  19  Mich.  220;  Mich.  437. 
Cresson  v.  Stout,  17  Johns.  (N.  Y.) 


§  53  Executions  745 

be  seen,  cannot  be  supported ;  ^^  but  a  sale  of  wheat  on 
the  ground,  made  at  a  point  within  plain  view  of  the 
wheat  and  of  the  place  where  it  was  advertised  to  be 
held,  but  thirty  or  thirty-five  rods  from  the  latter,  is  con- 
sidered as  being  held  substantially  at  the  place  ap- 
pointed.^' 

It  is  the  duty  of  the  officer  to  sell  the  property  in  such 
lots  or  parcels  as  to  command  the  highest  price,  and,  if 
he  willfully  sacrifices  the  property,  he  is  liable  to  the 
party  injured;  but  he  has  a  large  discretion,  and  is  not 
always  required  to  sell  each  particular  article  sepa- 
rately.^* When  mortgaged  chattels  have  been  levied 
upon  and  are  to  be  sold  under  execution,  they  must  be 
sold,  not  in  parcels,  but  all  together,  subject  to  the  lien  of 
the  mortgage,  unless,  however,  the  mortgage  be  first 
paid,  in  which  case  they  may  be  sold  as  if  the  mortgage 
ha'd  never  existed.^^ 

The  sheriff  should  limit  his  sale  to  enough  of  the  prop- 
erty levied  upon  to  satisfy  the  execution,  with  costs  and 
expenses.  Continuing  to  sell  after  the  execution  is  satis- 
fied is  lawless  conduct  and  cannot  be  justified  upon  any 
theory.^^ 

The  sale  must  be  for  cash,  unless  by  the  order  of  the 
court  or  the  agreement  of  the  interested  parties.  If, 
without  such  an  order  or  agreement,  the  officer  sells  on 
credit  or  accepts  anything  in  lieu  of  cash,  he  does  so  at 
his  own  risk  and  must  account  as  for  a  cash  sale.  If  the 
property  levied  upon  be  no  more  than  sufficient  to  satis- 
fy the  execution  and  costs  of  sale,  it  would  seem  that  the 
consent  merely  of  the  execution  plaintiff  to  a  credit  sale 

530;  Harvey  v.  McAdams,  32  Mich. 
472;  Smith  v.  Menominee  Circuit 
Judge,  53  Mich.  560;  Ganong  v. 
Green,  71  Mich.  1 ;  Daggett,  Bassett 
&  Hills  Co.  V.  McClintock,  56  Mich. 
51;  King  v.  Hubbell,  42  Mich.  597. 
25  Worthington  v.  Hauna,  23  Mich.  26  Allen  v.  Kinyon,  41  Mich.  281. 


22Winfield    v.    Adams,    34 

Mich. 

437. 

23  Perkins   v.    Spaulding,   2 

Mich. 

157. 

24  Perkins   v.   Spaulding,   2 

Mich. 

157. 

746  Executions  §  53 

would  be  sufficient  to  authorize  it;  but,  if  more  property 
has  been  levied  upon  than  will  be  needed  to  satisfy  the 
execution  and  costs,  the  consent  also  of  the  execution  de- 
fendant and  subsequent  purchasers,  mortgagees  and  at- 
tachment or  execution  creditors,  if  any,  to  a  sale  on  credit 
should  be  obtained. 

The  sale  should  be  made  to  the  highest  bidder.  The 
officer,  however,  need  not  entertain  the  bids  of  infants 
and  other  unresponsible  persons,  unless  in  some  way 
guaranteed. 

The  officer  himself  should  not,  either  directly  or  indi- 
rectly, become  a  purchaser  at  a  sale  conducted  by  him,^'' 
but  the  parties  to  the  judgment  or  other  persons  inter- 
ested in  it  may  become  purchasers. 

§  54. Sale  of  real  estate  in  parcels. 

When  any  real  estate  offered  for  sale  by  virtue  of  an 
execution  consists  of  several  known  lots,  tracts  or  par- 
cels, such  lots,  tracts  and  parcels  should  be  separately 
exposed  for  sale.  The  defendant  has  the  right  to  direct 
which  piece  or  parcel  shall  be  first  exposed  for  sale,  and 
no  more  tracts  or  parcels  should  be  exposed  for  sale  than 
appears  necessary  to  satisfy  the  execution  with  the  costs 
and  expenses  of  sale.^' 

The  provision  of  the  statute  that  the  sale  shall  be  in 
parcels  is  in  the  interest  of  the  party  or  parties  entitled 
to  redeem,  to  give  the  right  to  redeem  each  parcel  sepa- 
rately; ^  and  the  right  cannot  be  divested  by  a  sale  made 
in  gross,  which  would  be  unlawful  even  though  the  prop- 

27  The   sheriff   or   other   officer  to  28  Jud.    Act,   ch.   23,    §  92 ;    Comp. 

whom  an  execution  is  directed,  and  Laws  1915,  §  12907.    As  to  selling  as 

also     his    deputies,    are     forbidden  a   single   parcel   undivided  interests 

either  directly  or  indirectly  to  be  in-  which  the  defendant  owns  in  several 

terested  in  the  purchase  of  any  real  parcels  of  land,  see  Jud.  Act,  ch.  23, 

estate  at  any  execution  sale.     Jud.  §139;   Comp.  Laws  1915,  S  12954. 

Act,  ch.  23,  §91;  Comp.  Laws  1915,  29  Clark  v.  Stilson,  36  Mich.  482; 

§  12906.  Macomb  v.  Prentis,  57  Mich.  225. 


§  55  Executions  747 

erty  could  not  be  sold  in  parcels  for  want  of  bidders.'*' 
But  a  sale  in  gross,  when  there  should  have  been  a  sale 
in  parcels,  is  no  more  than  an  irregularity,  which,  al- 
though subject  to  correction  on  application  to  the  court 
from  which  the  execution  issued,  does  not  render  the  sale 
void  or  susceptible  to  collateral  attack.'^ 

The  statute  contemplates  a  sale  of  land  by  lot  or  gov- 
ernment additions.'^  Where  a  man  owning  two  lots  has 
put  up  a  single  building  covering  both  of  them,  the  prem- 
ises so  covered  should  be  sold  on  execution  as  one 
parcel.^' 

§  55.  Certificate  of  sale. 

Upon  the  sale  of  any  real  estate  by  virtue  of  an  execu- 
tion, it  is  the  duty  of  the  officer  making  the  sale  to  make 
and  subscribe  as  many  certificates  as  may  be  necessary, 
containing  (1)  a  particular  description  of  the  premises 
sold,  (2)  the  price  bid  for  each  distinct  lot  or  parcel  sold, 
(3)  the  consideration  money  paid  for  each  lot  or  parcel, 
and  (4)  the  time  when  the  sale  will  become  absolute  and 
the  purchaser  or  purchasers  will  be  entitled  to  a  deed. 
Upon  each  certificate,  he  should  indorse  the  rate  of  in- 
terest borne  by  the  judgment  upon  which  the  execution 
issued.'*  He  should  deliver  one  of  these  certificates  to 
each  purchaser  at  the  sale.'^ 

It  is  not  the  purpose  of  the  certificate  of  sale  to  convey 
either  the  title  or  the  right  of  possession  of  the  real  estate 
to  the  purchaser  at  the  sale.  It  is  intended  to  preserve 
the  evidence  which  entitles  the  purchaser  to  a  deed  when 
the  time  of  redemption  expires,  if  the  property  be  not 

30  Udell  V.  Kahn,  31  Mich.  195.  33  Geney    v.    Maynard,    44    Mich. 

31  Hoffman  v.  Buschman,  95  Mich.       578. 

538;   Cavenaugh  v.  Jakeway,  Walk.  34Jud.   Act,  ch.   23,    §93;    Comp. 

Ch.  344;  Khode  v.  Hassler,  113  Mich.  Laws  1915,  §  12908. 

56;  Brown  v.  O'Donnell,  123  Mich.  35  Jud.   Act,  ch.   23,    §94;    Comp. 

100.  Laws  1915,  §12909. 
82  Helton  V.  Moody,  117  Mich.  321. 


748  Executions  §  55 

redeemed.^^  It  is  the  deed  that  conveys  the  title  and 
right  of  possession.  In  the  meantime,  the  judgment 
debtor  is  entitled  to  the  possession,  rents  and  profits  of 
the  land,''  but  he  must  not  commit  any  waste  thereon  or 
remove  any  buildings,  fences  or  other  fixtures  belonging 
to  it  which  would  pass  by  a  conveyance  of  the  land.  If 
he  does  so,  the  purchaser,  or  anj^  person  who  has  ac- 
quired the  rights  of  the  purchaser,  may  maintain  against 
him  any  action  therefor  which  an  absolute  owner  of  the 
land  might  maintain.^' 

In  the  case  of  leasehold  interests,  however,  the  pur- 
chaser is  entitled  to  immediate  possession,'®  and  it  is 
therefore  made  the  duty  of  the  officer,  within  ten  days 
after  making  the  sale,  to  execute  to  the  purchaser  a  con- 
veyance, which,  if  the  unexpired  term  of  the  lease  ex- 
ceeds three  years  from  the  time  of  the  sale,  should  be 
by  deed  executed  and  acknowledged  so  as  to  entitle  it  to 
be  recorded  in  the  office  of  the  register  of  deeds.  Such 
deed  should  be  deposited  at  once  with  the  register  of 
deeds,  but  should  not  be  recorded  until  the  expiration  of 
a  year  from  the  day  of  the  sale.  The  date  on  which  the 
deed  will  be  thus  entitled  to  be  recorded  should  be  in- 
dorsed on  the  deed  by  the  officer  executing  it.'*" 

One  of  the  certificates  of  sale  should,  within  ten  days 
after  the  sale,  be  filed  by  the  officer  making  the  sale  in 
the  office  of  the  register  of  deeds  of  the  county  in  which 
the  sale  was  made.*^  The  failure  of  the  officer  to  perform 
his  official  duty  in  respect  of  filing  the  certificate  within 
the  ten  days  will  not,  however,  deprive  the  purchaser  of 
his  title.     If  the  execution  debtor  or  third  persons  are 

36  Gorham  v.  Wing,  10  Mich.  4S6,       Comp.  Laws  1915,  §§  12929,  12930. 
493;  Pike  v.  Halpin,  188  Mich.  447.  39  Jud.  Aet,  ch.  23,   §143;   Comp. 

37  See    Jud.    Act,    ch.    23,    §113;       Laws  1915,  §  12958. 

Comp.  Laws  1915,  §12928;  Ward  v.  40  Jud.  Act,  ch.  23,   §144;    Comp. 

Carp   Kiver  Iron   Co.,  47  Mich.   65;  Laws  1915,  §12959. 

Pike  V.  Halpin,  188  Mich.  447.  41  Jud.   Act,   ch.   23,    §94;    Comp. 

38  Jud.   Act,   ch.   2.3,   §§114,   115;  Laws  1915,  §12909. 


§  55  Executions  749 

honestly  misled  by  its  absence  from  the  files,  they  may 
properly  complain  unless  they  are  protected;  but,  except 
to  protect  them  in  their  purchases  or  other  rights  of 
claim  or  redemption,  there  is  no  reason  why  the  failure 
of  the  officer  to  file  the  certificate  should  impair  the  pur- 
chaser's rights.*^ 

The  certificate  of  sale  filed  by  the  officer  in  the  office  of 
the  register  of  deeds  is  to  be  recorded  in  a  book  to  be 
kept  for  that  purpose  by  the  register  of  deeds,  and  the 
original  certificate,  or  the  record  thereof,  or  a  transcript 
of  the  record  duly  certified  by  the  register  of  deeds,  is 
prima  facie  evidence  not  only  of  the  facts  therein  set 
forth,  but  of  the  regularity  of  the  sale  and  all  proceed- 
ings in  the  cause  anterior  to  the  sale.*^  The  record  of  the 
certificate  is  constructive  notice  to  subsequent  pur- 
chasers of  the  rights  acquired  by  the  purchaser  at  the 
execution  sale.** 

Form  of  Certificate  of  Sheriff  of  Saie  of  Real  Estate  on  Fieri  Facias 

State   of   Michigan,  1 
County    of    ,  j^^* 

I,  S.  T.,  sheriff  of  the  county  of ,  do  hereby  certify  that,  by  vir- 
tue of  a  certain  writ  of  fieri  facias,  issued  out  of  the  circuit  court  for  the 

county  of ,  in  favor  of  A.  B.  and  against  C.  D.,  to  me  directed  and 

delivered,  I  did  this  day,  in  the  manner  provided  by  statute,  and  after 
having  given  notice  of  sale  according  to  law,  sell  at  public  vendue  unto 

E.  F.,  of   ,  for  the  sum  of   dollars,  the  said  E.  F.  being  the 

highest  ])idder  and  that  being  the  highest  sum  bid  for  the  same,  all  the 

right,  title  and  interest  which  the  said  C.  D.  had,  on  the   day  of 

,  A.  D (date  of  the  levy),  or  at  any  time  afterwards,  in  and 

to  the  following  described  lands  and  tenements,  to  wit:  (Here  describe  the 
projjerty;)  together  with  all  and  singular  the  appurtenances  thereunto  be- 
longing, or  in  any  wise  appertaining;  that  the  said  sum  of dollars, 

so  bidden,  as  aforesaid,  by  the  said  E.  F.,  has  been  paid  to  me;  and  that 
the  said  E.  F.  or  liis  assigns  will  be  entitled  to  a  deed  of  conveyance  of 

42  Taylor    v.    Gladwin,    40    Mich.  Act,    ch.    23,    §144;     Comp.    Laws 

2:52;    and    see    Lilly    v.    Gibbs,    39  1915,   §12959. 

Mich.    394.      As   to    the   conveyance  43  Jud.   Act,   ch.   23,   §95;    Comp. 

to    the    purchaser    of    leasehold    in-  Laws  1915,  §  12910. 

terests   sold   on   execution,  see  Jud.  44  Atwood  v.  Bearss,  45  Mich.  169. 


750  Executions  §  55 

the  said  lands  ou  the day  of ,  in  the  year  one  thousand  nine 

hundred ,  unless  the  same  shall  be  sooner  redeemed  according  to  law. 

Given  under  my  hand  and  seal  this day  of ,  A.  D 

S.  T., 
Sheriff. 

Form  of  Indorsement  to  Be  Made  by  Sheriff  Upon  Foregoing  Certificate 

I   hereby   certify  that  the  rate  of  interest  borne   by  the  judgment  on 

which   the   within-named   execution  was  issued   is    per  centum  per 

annum. 

S.  T., 
Sheriff. 

§  56.  Title  and  rights  of  purchaser. 

The  jDurchaser  obtains  no  better  title  than  the  debtor 
had  at  the  time  of  the  levy."  Hence  a  subsequently  ac- 
quired title  does  not  inure  to  the  benefit  of  the  pur- 
chaser.*^ If  the  debtor  sells  the  land  levied  on  after  the 
levy,  the  execution  purchaser  takes  the  legal  title  and 
need  not  have  the  former  conveyance  set  aside.*'^  But  if 
a  purchaser  of  corporate  stock  at  an  execution  sale  has 
notice  of  an  unrecorded  transfer  thereof  as  collateral  se- 
curity, such  transfer  is  valid  as  against  the  purchaser." 

In  case  of  real  estate,  title  does  not  vest  until  the  ex- 
piration of  the  time  to  redeem  and  the  execution  of  a 
sheriff's  deed,"  and  until  then  the  judgment  debtor  is 
entitled  to  possession.*" 

§  57.  How  purchaser   of   lands   protected   against   loss 

through  irregularity  of  judgment  or  sale. 

If  the  purchaser  of  any  real  estate  sold  on  execution 

or  his  heirs  or  assigns  should  be  evicted  or  if,  in  any 

action  brought  for  the  recovery  of  the  lands,  judgment 

45  Clark  v.  Stilson,  36  Mich.  482;  48  May  v.  Clcland,  117  Mich.  45. 
Newberry  v.  Detroit,  etc.,  Mfg.  Co.,  49  See  §  79,  post. 

17  Mich.  141.  50  Debtor  may  work  mine  during 

46  McArthur    v.    Oliver,    60    Mich.      such   period.     Ward   v.    Carp   River 
605.  Iron  Co.,  50  Mich.  522. 

47  First   Nat.   Bank   v.   Phillpotts, 
155  Mich.  3.-51. 


§  59  ExECUTioxs  751 

should  be  rendered  against  him  or  them  in  consequence 
of  any  irregularity  in  the  proceedings  concerning  the 
sale  or  of  the  judgment  upon  which  the  execution  was 
issued  being  vacated  or  reversed,  he  or  his  heirs  or  as- 
signs may  recover  of  the  party  for  whose  benefit  the 
lands  were  sold  the  amount  paid  on  the  purchase,  with 
interest. ^^ 

§  58.  Disposition  of  surplus  moneys. 

If,  after  the  sale  of  any  real  estate  on  execution,  there 
remains  in  the  hands  of  the  officer  any  surplus  money 
after  satisfying  the  writ  or  writs  of  execution  on  which 
the  real  estate  was  sold,  with  the  interest  thereon,^^  the 
officer  must  pay  it  over  to  the  judgment  debtor  or  his 
legal  representatives  on  demand.^^  And  the  same  is  true 
of  a  sale  of  personal  property.  In  case  of  a  sale  of  mort- 
gaged chattels,  the  surplus,  if  any,  belongs  and  should 
be  paid  by  the  officer  to  the  mortgagor.^*  The  lawful 
fees  and  charges  of  a  sale  should  be  considered  as  a  part 
of  the  amount  due  on  the  execution.^® 

§  59.  When  property  to  be  re-sold. 

If  the  highest  bidder  for  any  article  at  a  sale  on  execu- 
tion refuses  to  take  and  pay  for  it,  the  officer  is  required 
to  sell  it  again  at  the  same  time  or  witliin  ten  days  there- 
after, giving  notice  of  the  second  sale,  and  account  for 
what  he  receives  on  the  second  sale  and  also  for  any  dam- 
ages that  may  be  recovered  of  the  first  bidder  for  any 
loss  on  the  resale  as  for  so  much  received  on  the  execu- 
tion.*^ 

eiJud.  Act,  ch.  23,  §128;   Comp.  B4Munger   v.    Sanfonl,   144   Mich. 

Laws   1915,   §  12943.  323. 

62  As  to  computing  the  interest,  66  Jud.  Act,  ch.  23,  §123;  Comp. 
see   Jud.    Act,   ch.    23,    §20;    Comp.  Laws   1915,   §12938. 

Laws  1915,  §  12835.  66  Jud.    Act,   ch.   23,    §54;    Comp. 

63  Jud.  Act,  ch.  23,  §120;   Comp.      Laws  1915,  §12869. 
Laws  1915,  §  12935. 


752  Executions  §  60 

§  60.  Setting  aside  sale. 

Where  an  execution  sale  is  invalid,  it  may  be  set  aside 
on  motion,"  but  not  without  notice  to  the  purchaser,^* 
nor  for  an  irregularity  where  the  motion  is  not  made  un- 
til several  years  after  the  sale.**^  It  is  ground  for  setting 
aside  that  separate  tracts  of  land  are  erroneously  sold  as 
one  parcel.^"  The  inadequacy  of  the  price  is  ordinarily, 
standing  by  itself,  not  a  ground;"  but  it  is  a  ground 
where  coupled  with  other  objections.^^  Failure  of  the 
sheriff  to  pay  into  the  court  the  sum  realized  from  the 
sale,  so  as  to  allow  the  execution  debtor  to  withdraw  the 
amount  of  his  homestead  exemption,  is  not  ground.^^  In 
a  proper  case  a  suit  in  equity  lies  to  set  the  sale  aside,®* 
but  irregularity  is  not  sufficient  since  there  must  be  fraud 
to  give  chancery  jurisdiction.®^  Where  the  execution 
debtor  neglected  to  redeem  within  a  year,  he  cannot 
thereafter  sue  to  set  the  sale  aside  on  the  ground  that 
the  levy  was  excessive.®® 

§  61.  Irregnlarities  affecting  validity  of  sale. 

Whenever  the  execution  upon  its  face  authorizes  the 
officer  to  sell,  and  is  based  upon  a  subsisting  judgment, 
the  title  of  a  bona  fide  purchaser  will  not  be  affected  by 
any  irregularities  in  the  execution.®"''  Thus,  want  of  no- 
tice of  the  sale  cannot  invalidate  the  title  of  an  innocent 

57  See  Bacon  v.  Kimmel,  14  Mich.  63  Flynn  v.  Kalamazoo  Circuit 
201;  Vroman  v.  Thompson,  51  Mich.       Judge,  136  Mich.  23. 

452,  bill  to  remove  cloud  from  title  64  Vroman  v.  Thompson,  51  Mich, 

by  setting  aside  execution  sale.  452. 

58  Wilkie  v.  Ingham  Circuit  Judge,  First  Nat.  Bank  v.  State  Sav. 
52  Mich.  641.  Bank,   123   Mich.   321. 

59  Spafford  v.  Beach,  2  Doug.  150.  65  Cavenaugh    v.    Jakeway,    Walk. 
eOHolton    V.    Moody,    117    Mich.       27. 

321.  67  See   Elliott   v.    Hart,   45   Mich. 

eiAldrich  v.    Maitland,    4    Mich.       234. 

205.  66  Campau    v.    Godfrey,    18    Mich. 

62  Id.  Ch.  344. 


§  62  Executions  753 

purchaser  at  such  sale.^'  So  the  neglect  of  the  officer  to 
levy  until  after  the  return  day  of  the  w^rit,  or  his  omission 
to  file  the  certificate  of  sale,^^  will  not  prejudice  the  title 
of  a  purchaser  in  good  faith,  without  notice.  So  the 
title  of  a  purchaser  of  real  estate  sold  on  execution,  is  not 
affected  by  the  insufficiency  of  the  sheriff's  return  to  the 
execution.  His  certificate  of  sale  and  deed,  and  not  his 
return,  are  the  evidence  of  such  title.'''"  However,  the 
purchaser  takes  no  title  where  the  judgment  is  void  and 
the  want  of  jurisdiction  appears  on  the  record,'^  nor 
where  the  levy  is  defective.'^ 

E.  Return 

§  62.  Necessity  for,  sufficiency  of,  arid  who  may  make. 

It  is  the  duty  of  the  sheriff"  or  other  officer  to  whom  a 
writ  of  fieri  facias  has  been  delivered  to  make  his  return 
in  due  season  of  the  manner  in  which  he  has  executed  it. 
This  should  be  by  certificate,  either  indorsed  upon  or 
annexed  to  the  writ,  under  the  hand  of  the  officer,  stating 
briefly,  but  precisely,  what  has  been  done  by  virtue  of 
the  writ  and  in  obedience  to  its  commands.  If  a  sale  has 
been  made,  the  return  should  specify  the  property  sold 
and  the  sum  for  which  each  article  or  parcel  was  sold.""* 
The  return  should  specify  the  property  levied  upon  and 
sold  and  the  amount  realized  upon  the  sale,  or  if  no  prop- 
erty could  be  found,  or  not  enough  to  satisfy  the  execu- 
tion, or  if  the  property  could  not  be  sold  for  want  of  bid- 
ders or  has  been  lost  or  destroyed  or  replevined  from  the 
officer  at  the  suit  of  a  third  person,  or  if  any  other  special 
fact  exists  material  to  the  service  of  the  writ,  it  should 
be  set  forth  in  the  return.    But  it  is  not  necessary  that 

68  Cook  V.  Knowles,  38  Mich.  316.  72  Eggleston    v.    Muiuly,    4    Mich. 

69  Taylor    v.    Gladwin,    40    Mich.       295. 

232.  73Jud.  Act,  ch.  23,   §148;   Comp. 

70  Sec  §  79,  post.  Laws  1915,  §  12963. 

71  Wilson  V.  Arnold,  5  Mich.  98. 

1  Abbott— 48 


754  Executions  §  62 

the  officer  returning  a  sale  of  real  estate  should  specifical- 
ly state  that  he  could  not  find  sufficient  goods  and  chat- 
tels of  the  defendant  to  satisfy  the  execution,''*  nor  is  it 
necessary  that  he  should  certify  to  the  posting  or  publi- 
cation of  the  notice  of  sale.'* 

When  an  officer  has  begun  to  serve  an  execution  and 
dies  or  becomes  incapable  of  completing  the  service  and 
return,  the  service  may  be  completed  by  any  other  officer 
who  might  by  law  have  executed  the  writ  if  it  had  been 
originally  delivered  to  him;  and,  if  the  first  officer  has 
not  made  a  certificate  of  his  doings,  the  second  officer 
should  certify  whatever  he  finds  to  have  been  done  by 
the  first  and  add  thereto  a  certificate  of  his  own  doings 
in  completing  the  service.''^  And  when  an  officer  has  be- 
gun to  serve  an  execution  on  or  before  the  return  day, 
he  may  complete  the  service  and  return  afterwards.''^''  If 
an  officer  fails  to  make  a  return,  he  may  be  compelled  to 
do  so  by  any  person  interested  in  procuring  a  return,  by 
means  of  the  procedure  by  rule  and  attachment.''' 

Form  of  Return  to  Fieri  Facias  Satisfied 

State  of  Michigan,  ] 
County  of   I 

I  hereby  return  the  within  writ  of  fieri  facias  satisfied,  both  as  to  dam- 
ages (or,  debt  and  damages)  and  costs. 
Dated,  etc.  S.  T., 

Sheriff. 

Form  of  Return  to  Fieri  Facias  of  Levy  and  Sale 

State  of  Michigan, 
County  of   

I  hereby  certify  and  return  that,  by  virtue  of  the  within  writ,  I  did,  on 
the   day  of   ,  A.  D ,  levy  on  the  following  described 

74  Atwood  V.  Bearss,  45  Mich.  469.  77  Jud.    Act,   eh.   23,    §  22 ;    Comp. 

75  Grand    Rapdds    Nat.    Bank    v.      Laws  1915,  §  12837. 
Kritzer,  116  Mich.  688.  '8  Cir.  Ct.  Rule  20. 

76  Jud.   Act,  ch.   23,    §  21 ;    Comp. 
Laws  1915,  §  12836. 


§  62  Executions  755 

property,  to  wit:  (Here  describe  the  property),  as  the  property  of  the 
defendant  named  in  the  said  writ;   and  I  further  return  that  afterwards, 

and  on  the day  of ,  A.  D ,1  sold  at  public  vendue,  at 

,  after  giving  notice  of  the  time  and  place  of  said  sale  according 

to  law,  the  property  aforesaid,  to  the  highest  bidder,  for  the  sums  re- 
spectively herinafter  mentioned,  that  is  to  say: 

One  horse  sold  for $ 

One  heavy  lumber  wagon  sold  for $ 

The  money  arising  from  said  sales  I  have  ready,  as  I  am  commanded  in 
said  writ. 

Dated,  etc.  S.  T., 

Sheriff. 

Form  of  Return  to  Fieri  Facias  Satisfied  in  Part,  and  Nulla  Bona  as  to 

Residue 

State  of  Michigan,  ) 
County  of    ( 

I  hereby  certify  and  return  that  I  have  caused  to  be  made  of  the  within 

damages  and  costs  the  sum  of dollars,  which  I  have  ready,  as  I  am 

within  commanded;  and  I  further  return  that  the  within-named  defendant 
has  no  goods  or  chattels,  lands  or  tenements,  in  my  bailiwick,  whereof  I  can 
cause  the  residue  of  said  damages  and  costs  to  be  made,  as  I  am  within 
commanded. 

Dated,  etc.  S.  T., 

Sheriff. 

Form  of  Return  to  Fieri  Facias  of  Levy,  and  the  Property  Replevied 

State  of  Michigan, 
County  of   

I  hereby  certify  and  return  that,  by  virtue  of  the  within  writ,  I  did,  on 

the day  of ,  A.  D ,  levy  on  the  following  property,  to 

wit:     (Here  describe  the  property),  as  the  property  of  the  defendant  named 

in  said  writ,  which  said  property  was  afterwards,  on  the    day  of 

,  A.  D ,  taken  from  me  by  a  writ  of  replevin,  issued  out  of 

the  circuit  court  for  the  county  of (or  as  the  case  may  be),  wherein 

one  E.  F.  is  plaintiff  and  I  am  defendant;  wherefore,  I  cannot  have  the 
money,  or  any  part  thereof,  before  the  court,  as  I  am  in  said  writ  com- 
manded. 

Dated,  etc.  S.  T., 

Sheriff. 

Form  of  Return  to  Fieri  Facias  of  Levy  on  Property  Remaining  Unsold 

for  Want  of  Bidders 
State  of  Michigan,  ^ 

County  of    | 

I  hereby  certify  and  return  that,  by  virtue  of  the  within  writ,  to  me 
directed  and  delivered,  I  have  levied  on  the  following  described  property, 


756  Executions  §  62 

to  wit:  (Here  describe  the  property),  which  still  remains  in  my  hands  un- 
sold for  the  want  of  buyers;  wherefore,  I  cannot  have  the  money,  or  any 
part  thereof,  before  the  court,  as  I  am  within  commanded. 

Dated,  etc.  S.  T., 

Sheriff. 

Form  of  Return  to  Writ  of  Fieri  Facias  of  Nulla  Bona 

State  of  Michigan,   ) 
County  of   J  ^^• 

I  hereby  certify  and  return  that  the  within-named  defendant  has  no  goods 
or  chattels,  lands  or  tenements,  in  my  bailiwick,  whereof  I  can  cause  the 
damages  and  costs  within  mentioned,  or  any  part  thereof,  to  be  made,  as  I 
am  within  commanded. 

Dated,  etc.  S.  T., 

Sheriff. 

§  63.  Time  for  making. 

An  officer  may  lawfully  return  an  execution  at  any 
time  on  the  return  day,  except  where  it  is  Sunday.'''®  But 
it  has  been  held  that  the  debtor  is  entitled  to  have  no 
return  made  before  the  return  day,  where  a  return  of 
nulla  bona  is  to  be  used  as  a  basis  of  other  proceedings.*" 

§  64.  Setting  aside. 

A  return  may  be  set  aside  in  a  proper  case.  For  in- 
stance, a  judgment  debtor  may  move,  in  the  suit  in  which 
the  judgment  was  rendered,  to  set  aside  the  return,  and 
may  show  its  falsity.®^ 

§  65.  Conclusiveness. 

The  sheriff  cannot  contradict  his  return.  A  return  is 
generally  conclusive  as  to  the  facts  which  it  recites,  ex- 
cept as  to  third  persons.  The  return  is  not  conclusive  as 
to  third  persons.*'^  While  the  return  stands,  it  is  con- 
clusive on  the  parties.®*  But  even  when  it  is  conclusive, 
parol  evidence  is  admissible  to  show  that  the  return  pur- 

79  Peek  v.  Cavell,  16  Mich.  9.  81  William   Wright  Co.   v.   Wayne 

80  First  Nat.  Bank  v.  Dwight,  83  Circuit  Judge,  109  Mich.  i:59. 
Mich.  189;  Stewart  v.  Stevens,  Har.  82  Nail   v.   Granger,   8   Mich.   450, 
169;  Smith  v.  Thompson,  Walk.  Ch.  time  of  levy. 

1,  83  Flynn     v.     Kalamazoo     Circuit 


§  67  Executions  757 

porting  to  be  made  on  Sunday  was  in  fact  made  the  day 
before,  where  the  date  is  contradicted  by  other  parts  of 
the  record.®*  It  cannot  be  collaterally  attacked  in  a 
judgment  creditor's  suit,®^  but  a  party  may  move  in  the 
main  case  to  set  aside  the  return,  and  show  its  falsity.*^ 

§  66.  Effect  of  insufficiency. 

The  insufficiency  of  the  return  does  not  affect  the  title 
of  the  execution  purchaser,®'  and  the  omission  to  return 
a  want  of  personal  property  is  not  fatal  to  a  sale  of  land 
where  there  is  no  showing  that  there  was  any  personal 
property.*® 

F.  Redemption 

§  67.  Within  one  year. 

Within  one  year  from  the  time  when  the  sale  is  made, 
tlie  real  estate  sold,  or  any  distinct  lot,  tract  or  portion 
which  was  separately  sold,  may  be  redeemed  by  payment 
of  the  sum  of  money  which  was  bid  on  the  sale  of  such 
lot  or  tract,  together  with  interest  on  that  sum  from  the 
time  of  the  sale  to  the  time  of  redemption,  computed  at 
the  rate  per  centum  per  annum  borne  by  the  judgment 
imder  Avhich  the  sale  was  made.  Such  payment  may  be 
made  either  to  the  purchaser,  his  personal  representa- 
tives or  assigns,  or  to  the  officer  who  made  the  sale  or  to 
the  register  of  deeds  in  whose  office  the  certificate  of  sale 
is  filed,  for  the  use  of  the  purchaser.®^  The  statutory 
redemption  will  not  be  valid  unless  made  in  conformity 

Judge,    136   Mich.    23,   holding   that  87  Crane    v.    Hardy,    1    Mich.    56; 

the    proper    practice,    where   the    re-  Spafford  v.  Beach,  2  Doug.  150. 

turn   is   deemed  untrue,  is   to   move  88  Atwood  v.  Bearss,  45  Mich.  469. 

to    amend    the    return;    Lieblein    v.  89  Jud.    Act,   ch.   23,   §96;    Conip. 

Hansen,  178  Mich.  11,  17.  Laws  1915,  §  12911. 

84  Maeomber  v.  Wright,  108  Mich.  As  to  the  redemption  of  leasehold 
109.  interests  in  real  estate  sold  on  execu- 

85  William  Wright  Co.  v.  Wayne  tion,  see  .Jud.  Act,  ch.  23,  §145; 
Circuit  Judge,  109  Mich.  139.  Comp.  Laws  1915,  §12960. 

86  Id. 


758  Executions  §  67 

with  the  statute,  by  the  proper  parties  and  within  the 
statutory  time.®"  In  computing  the  time,  it  has  been  held 
that  the  day  on  which  the  sale  was  made  is  to  be  ex- 
cluded.®^ The  statute  seems  to  rest  mainly  upon  the  idea 
that  real  estate  may  be  sold  for  less  than  its  value,  and 
to  give  the  time  for  redemption  mainly  on  this  ground. 
This  is  an  adequate  remedy  for  a  sale  at  an  inadequate 
price  and  if  a  party  does  not  avail  himself  of  it,  he  can- 
not, after  the  time  has  expired,  successfully  move  the 
court  to  set  aside  the  sale.®^ 

The  one  year  limit  may  be  extended  by  agreement  be- 
tween the  execution  creditor  and  the  execution  debtor, 
and  such  agreement  may  be  oral.®'  It  follows  that  the 
year  limit  is  waived  by  a  senior  execution  creditor  where, 
after  the  expiration  of  such  period  and  before  any  junior 
execution  creditor  has  acquired  any  rights,  he  accepts 
payment  of  his  judgment.®* 

§  68.  By  whom  made. 

Redemption  may  be  made  (1)  by  the  person  against 
whom  the  execution  was  issued  and  whose  right  and 
title  was  sold  in  pursuance  thereof,  or  (2),  if  such  person 
be  dead,  by  his  devisee  of  the  premises  sold,  if  they  have 
been  devised,  and,  if  they  have  not  been  devised,  by  the 
executor  or  administrator,  with  the  approbation  of  the 
judge  of  probate,  or  by  the  heirs  of  such  person,  or  (3) 
by  any  grantee  of  such  person  who  has  acquired  an  abso- 
lute title  by  deed,  sale  under  mortgage  or  under  an  execu- 
tion or  by  any  other  means  to  the  premises  sold  or  to  any 
lot,  tract,  parcel  or  portion  which  has  been  separately 
sold,  or  (4)  by  the  purchaser  of  the  title  and  right  of  re- 

90  Whiting    v.    Butler,    29    Mich.  92  Campau    v.    Godfrey,    18    Mich. 
122;   Pellston  Planing  Mill  &  Lum-       27. 

ber  Co.  v.  Van  Wormer,   198  Mich.  93  Pellston  Planing  Mill  &  Lumber 

648.  Co.  V.  Van  Wormer,  198  Mich.  648, 

91  Gorham  v.  Wing,  10  Mich.  486.  653. 
See  generally  Time.  94  Id. 


§  70  Executions  '759 

demption  of  the  person  against  whom  the  execution  was 
issued.®* 

§  69.  By  part  owners,  heirs  or  devisees. 

.  Any  lieir  or  devisee  of  the  person  against  whom  the 
execution  was  issued,  or  any  grantee  of  such  person  who 
has  acquired  an  absolute  title  to  a  portion  of  the  estate 
sold  or  to  a  portion  of  any  lot,  tract  or  parcel  that  has 
been  separately  sold,  or  the  executor  or  administrator 
of  such  person  with  the  approbation  of  the  judge  of  pro- 
bate, may  redeem  the  lot,  tract  or  parcel  so  sold  on  the 
same  terms  and  in  the  same  manner  as  if  he  were  grantee 
of  the  whole  lot,  tract  or  parcel,  and  will  have  the  same 
remedy  to  enforce  contribution  from  those  who  own  the 
residue  of  such  lot,  tract  or  parcel  as  if  the  sum  required 
to  be  paid  by  him  to  effect  such  redemption  had  been  col- 
lected by  a  sale  of  the  portion  belonging  to  such  grantee.®*' 

§  70.  By  owners  of  undivided  shares. 

If  there  be  several  persons  having  undivided  shares  as 
joint  tenants  or  tenants  in  common  in  the  premises  sold, 
or  in  any  particular  lot  or  tract  sold,  each  one  may  re- 
deem the  share  or  interest  belonging  to  him  by  paying  to 
the  purchaser  or  to  the  officer  who  made  the  sale  or  to 
the  register  of  deeds  in  whose  office  the  certificate  of  sale 
has  been  filed,  for  the  use  of  the  purchaser,  a  sum  bear- 
ing the  same  proportion  to  the  whole  purchase  money 
bid  for  the  premises,  or  for  the  particular  lot  or  tract,  as 
the  share  proposed  to  be  redeemed  bears  to  the  whole  of 
such  premises,  lot  or  tract,  together  with  the  interest  on 
such  sum  from  the  time  of  the  sale  to  the  time  of  redemp- 
tion, computed  at  the  rate  borne  by  the  judgment.®'' 

OSJud.  Act,   ch.   23,   §97;    Comp.  97  Jud.   Act,   ch.   23,   §99;    Comp. 

Laws  1915,  §  12912.  Laws  1915,  §  12914. 

96  Jud.   Act,  ch.   23,    §98;    Comp. 
Laws   1915,   §  12913. 


760  Executions  §  70 

When  a  judgment  debtor  is  the  owner  of  an  undivided 
interest  in  several  parcels  of  land  with  the  same  persons, 
and  such  interest  in  any  or  all  of  the  parcels  has  been 
levied  upon  and  sold  as  a  single  parcel,  such  interest  may- 
be redeemed  only  on  payment  of  the  entire  sum  bid,  with 
interest  at  the  rate  borne  by  the  judgment.^^ 

§  71.  Redemption  of  leaseholds. 

In  cases  where  the  unexpired  term  of  a  leasehold  sold 
on  execution  exceeds  three  years  at  the  date  of  the  sale, 
the  defendant  has  one  year  after  the  sale  in  which  to  re- 
deem from  the  purchaser  or  his  assigns.^^  Such  redemp- 
tion is  made  in  the  same  manner  as  the  redemption  of 
real  estate  sold  on  execution.  The  deed  then  becomes 
void  and  the  defendant  is  entitled  to  re-possess  and  en- 
joy the  premises.  But  if  the  purchaser  was  compelled  to 
pay  any  rent  due  or  past  due  at  the  date  of  the  sale,  no 
redemption  will  be  allowed  until  the  amount  so  paid  has 
been  refunded  to  the  purchaser,  with  interest,  in  addi- 
tion to  the  amount  for  which  the  leasehold  was  sold.^ 

§  72.  Eifect  of  redemption  on  sale  and  certificate  of  sale. 
Upon  the  payment  of  a  sufficient  amount  being  made 
to  the  purchaser  or  to  either  of  the  officers  authorized  to 
receive  payment  of  redemption  money  by  any  person  en- 
titled to  redeem  any  real  estate  sold  on  execution,  the 
sale  of  the  premises  so  redeemed  and  the  certificate  of 
sale,  to  the  extent  of  the  premises  or  shares  so  redeemed, 
will  be  null  and  void.^ 

§  73.  After  one  year  and  within  fifteen  months. 

In  case  the  persons  entitled  to  redeem  omit  to  do  so 
within  a  year  from  the  time  of  the  sale,  then  the  interest 

98Jud.  Act,  ch.  23,  §139;  Comp.  Uud.   Act,   eh.   23,    §142;    Comp. 

Laws  1915,  §  12954.  Laws  1915,  §  12957. 

99Jud.  Act,  ch.  23,   §145;  Comp.  2  Jud.   Act,   ch.   23,   §100;    Comp. 

Laws  1915,  §  12960.  Laws  1915,  §  12915. 


§  73  Executions  761 

vested  in  the  purchaser  by  the  sale  may  be  acquired 
within  three  months  after  the  expiration  of  the  year  by 
the  persons  and  on  the  terms  which  will  be  now  ex- 
plained.^ 

Any  creditor  of  a  person  against  whom  the  execution 
issued  who  has,  in  his  own  name  or  as  assignee,  repre- 
sentative, trustee  or  otherwise,  a  decree  in  chancery  or  a 
judgment  at  law,  under  which  an  execution  has  been 
levied  upon  the  real  estate  so  sold,  or  a  decree  which  is 
a  lien  thereon  without  execution  and  levy,  may  at  any 
time  before  the  expiration  of  fifteen  months  from  the 
time  of  the  sale,  by  paying  the  sum  of  money  which  was 
paid  on  the  sale,  together  with  interest  thereon  at  the 
rate  borne  by  the  judgment  from  the  time  of  the  sale,  ac- 
quire all  the  rights  of  the  original  purchaser,  subject 
to  be  defeated  as  will  be  presently  explained.*  If  such 
creditor's  levy  or  decree  be  a  lien  upon  any  lot,  tract 
or  parcel  that  has  been  separately  sold,  he  may,  by  pay- 
ing the  sum  bid  for  it,  with  interest,  acquire  all  the 
rights  of  the  original  purchaser  to  it,  subject  to  be  de- 
feated as  will  be  explained.*  And,  if  the  creditor's  levy 
or  decree  is  a  lien  on  only  a  specific  portion  of  a  lot,  tract 
or  parcel,  he  may  acquire  the  title  of  the  original  pur- 
chaser to  the  whole  of  the  lot,  tract  or  parcel  in  the  same 
manner  as  if  his  lien  extended  to  the  whole;®  or,  if  his 
lien  is  upon  an  undivided  share  or  interest,  he  may,  with- 
in the  same  time,  on  the  same  terms  and  in  the  same  man- 
ner, acquire  the  title  of  the  original  purchaser  to  such 
share  or  interest  by  paying  such  part  of  the  whole  pur- 
chase money  as  is  in  just  proportion  to  such  share  or 
interest.' 

SJud.   Act,   ch.   23,    §101;    Comp.  6  Jud.   Act,   ch.   23,   §103;    Conip. 

Laws    1915,    §  12916.      See    Pellston  Laws  1915,  §  12918. 

Planing  Mill  &  Lumber  Co.  v.  Van  6  Jud.   Act,  ch.   23,   §104;   Comp. 

Wormer,  198  Mich.  648.  Laws  1915,  §  12919. 

4  Jud.   Act,   ch.   23,   §102;    Comp.  7  Jud.   Act,   ch.   23,    §105;    Comp. 

Laws  1915,  §  12917.  Laws  191.5,  §  12920. 


762  Executions  §  74 

§  74.  By  second  or  other  creditors. 

Subject  to  the  provision  that  creditors  are  allowed  to 
acquire  the  rig-hts  of  the  original  purchaser  in  the  order 
of  their  liens  upon  the  property,®  whenever  any  creditor 
has  acquired  the  title  of  the  original  purchaser,  any  other 
creditor  who  might  have  acquired  such  title  may  become 
a  i)urchaser  thereof  from  the  first  creditor  who  acquired 
it,  upon  the  following  conditions: 

1.  By  reimbursing  to  the  first  creditor,  liis  personal 
representatives  or  assigns  the  sum  which  he  has  paid 
to  acquire  the  title  of  the  original  purchaser,  together 
with  interest  thereon  at  the  rate  borne  by  the  judgment 
on  which  the  execution  sale  was  made  from  the  time  of 
the  first  creditor's  payment  to  the  time  of  reimburse- 
ment. 

2.  If  the  levy  under  the  execution  or  decree  by  virtue 
of  which  the  first  creditor  acquired  the  title  of  the  orig- 
inal purchaser  is  prior  to  the  levy  or  decree  of  the  second 
creditor,  then  the  latter  must  also  pay  to  the  first  cred- 
itor the  amount  due  on  his  judgment  or  decree. 

3.  But  if  the  levy  or  decree  of  the  first  creditor  at  the 
time  of  his  acquiring  the  title  of  the  original  purchaser 
has  ceased  to  be  a  lien  as  against  the  second  creditor,  it 
will  not  be  necessary  for  the  latter  to  pay  the  amount 
due  on  the  first  creditor's  judgment  or  decree.*  And,  in 
the  same  manner,  any  third  or  other  creditor  who  might 
acquire  the  title  of  the  original  purchaser  may  become 
a  purchaser  thereof  from  the  second,  third  or  any  other 
creditor  who  may  have  become  purchaser  from  any  other 
creditor,^*'  and,  if  the  original  purchaser  at  the  execution 
sale  is  also  a  creditor  of  the  execution  defendant,  and, 
as  such  creditor,  might  acquire  the  title  of  any  purchaser, 
he  may  avail  himself  of  his  judgment  or  decree  in  the 

8Jud.  Act,  ch.  23,   §188;    Comp.      Laws  1915,  §12921. 
Laws  1915,  §12953.  10  Jud.  Act,  ch.  23,  §107;   Comp. 

9.1ud.   Act,   ch.   23,    §106;    Comp.       Laws  1915,  §12922. 


§  76  Executions  763 

same  manner  and  on  the  same  terms  to  acquire  the  title 
which  any  creditor  may  have  obtained." 

§75.  Right  of  plaintiff  to  acquire  purchaser's  in- 
terest except  as  creditor. 

The  plaintiff  under  whose  execution  real  estate  is  sold 
has  no  right,  by  virtue  merely  of  the  judgment  on  which 
the  execution  issued,  to  acquire  the  title  of  the  original 
purchaser  at  his  sale  or  the  title  of  any  creditor  to  the 
premises  sold,  but,  if  he  has  any  other  judgment  or  de- 
cree which  would  entitle  him  to  acquire  such  title,  he 
may  avail  himself  of  it  in  the  same  manner  and  on  the 
same  terms  as  any  other  creditor.^^ 

§  76.  To  whom  payment  by  creditors  to  be  made  and 
effect  of  pa3mient. 

.  The  sums  required  to  be  paid  by  a  creditor  to  acquire 
the  title  of  the  original  purchaser  or  of  a  creditor  who 
has  acquired  it  may  be  paid  to  such  purchaser  or  cred- 
itor, his  representatives  or  assigns,  or  to  the  officer  who 
made  the  sale  or  the  register  of  deeds  in  whose  office  the 
certificate  of  sale  is  filed,  for  the  use  of  the  original  pur- 
chaser or  creditor  entitled  to  the  same."  And,  upon 
such  payment  being  made,  the  title  of  the  original  pur- 
chaser or  creditor  will  be  thereby  transferred  to  the 
creditor  becoming  the  purchaser  thereof.^*  Such  creditor 
is  entitled  to  receive  from  the  person  from  whom  lie  pur- 
chases an  assignment  executed  and  acknowledged  in  the 
same  manner  as  deeds  of  conveyance  of  land  are  re- 
quired to  be  executed  and  acknowledged  to  entitle  them 

llJud.  Act,  ch.  23,  §108;   Comp.  see   Jud.   Act,   ch.   23,    §§136,    137; 

Laws  1915,  §  12923.  Comp.   Laws   1915,   §§  12951,   12952. 

12  Jud.  Act.  ch.  23,  §109;   Comp.  13  .Jud.  Act,  ch.  23,  §110;   Comp. 

Laws  1915,  §  12924.  Laws  1915,  §  12925. 

As  to  the  rights  of  a  mortgagee  14  Jud.  Act,  ch.  23,  §111;    Comp. 

of  lands  sold  on  execution  to  acquire  Laws  1915,   §  12926. 
the   title   of   the   original   purchaser, 


764  Executions  §  76 

to  be  recorded,  because,  before  he  will  be  entitled  to  a 
conveyance  of  the  land  in  case  it  is  not  redeemed,  the 
assignment  or  assignments  under  which  he  claims  must 
be  so  executed  and  acknowledged  or  proved  and  be  re- 
corded in  the  office  of  the  register  of  deeds  of  the  county 
in  which  the  lands  are  situated.^^ 

§  77.  Evidence  of  right  to  acquire  purchaser's  interest. 

To  entitle  a  creditor  to  acquire  the  title  of  the  original 
purchaser  or  to  become  a  purchaser  from  any  other 
creditor,  he  must  present  to  and  leave  with  such  pur- 
chaser or  creditor  or  with  the  officer  who  made  the  sale 
or  the  register  of  deeds  in  whose  office  the  certificate  of 
sale  is  filed,  the  following  evidence  of  his  right: 

1.  A  certified  copy  of  the  judgment  or  decree  under 
which  he  claims  the  right  to  purchase. 

2.  A  true  copy  of  all  the  assignments  of  such  judg- 
ment or  decree  which  are  necessary  to  establish  his  claim, 
verified  by  his  affidavit  or  the  affidavit  of  some  witness 
thereto. 

3.  An  affidavit  of  such  creditor,  his  agent  or  attorney 
of  the  true  sum  due  on  such  judgment  or  decree  at  the 
time  of  claiming  the  right  to  purchase.^® 

§  78.  Redeeming  and  acquiring  purchaser's  rights  in 
mortgaged  premises. 
When  a  riglit  of  redeeming  mortgaged  real  estate  and 
real  estate  sold  on  execution  has  been  levied  upon  and 
sold  on  execution,  such  equity  of  redemption  may  be  re- 
deemed, and  the  rights  of  any  purchaser  acquired,  in  the 
same  manner  and  on  the  same  terms  and  conditions  as 
other  real  estate  sold  on  execution.^'''  If  the  purchaser 
of  such  an  equity  of  redemption  or  any  creditor  having 

15Jud.  Act,  ch.  23,  §127;   Comp.  17  Jud.   Act,  ch.  23,  §121;   Comp, 

Laws  1915,  §  12942.  Laws    1915,    §  12936. 

16  Jud.  Act,  ch.  23,  §112;   Comp. 
Laws  1915,  §  12927. 


§  79  Executions  765 

acquired  his  rights  pays  the  debt  due  on  the  mortgage  or 
the  amount  of  the  sale  of  premises  sold  on  execution,  or 
any  part  thereof,  the  amount  so  paid  must  be  paid,  witli 
interest,  to  such  purchaser  or  creditor  in  redeeming  the 
premises  or  purchasing  the  rights  of  such  purchaser  or 
creditor,  as  the  case  may  be.^^ 

G.  Sheriff's   Deed 

§  79.  Rig"ht  to,  necessity  for,  etc. 

After  the  expiration  of  fifteen  months  from  the  time 
of  the  sale  of  any  real  estate  on  execution,  if  any  part 
of  the  premises  sold  remains  unredeemed  by  the  person 
against  whom  the  execution  issued,  or  by  any  person 
entitled  to  redeem  them  within  one  year  from  the  time 
of  the  sale,  the  officer  making  the  sale  or  his  successor  in 
office  is  required  to  complete  the  sale  by  executing,  in 
due  form  of  law,  a  conveyance  of  the  premises  so  re- 
maining unredeemed,  either  to  the  original  purchaser  or 
to  the  creditor  who  may  have  acquired  the  title  of  such 
original  purchaser,  or  to  the  assigns  of  such  purchaser, 
or  to  the  creditor  who  may  have  purchased  the  title  from 
any  other  creditor,  as  the  case  may  be ;  and  such  convey- 
ance will  be  valid  and  effectual  to  convey  all  the  right, 
title  and  interest  which  was  sold  on  the  execution. ^^  But 
before  any  assignee  or  his  personal  representatives  will 
be  entitled  to  a  conveyance,  every  assignment  under 
which  he  claims  title  must  be  executed  and  acknowledged 
or  proved  in  the  same  manner  as  deeds  are  required  to 
be  to  entitle  them  to  be  recorded  and  must  be  recorded 
( in  the  office  of  the  register  of  deeds  of  the  county  in  which 
the  real  estate  involved  is  situated.^" 

ISJiid.  Act,  ch.  23,  §122;   Comp.  tiator    of    the    person    entitled,    see 

Laws  1915,  §  12937.  .Tud.  Act,  ch.  23,  §§  117,  118;  Comp. 

19Jud.  Act,  ch.  23,   §116;   Comp.  Laws  1915,  §§12932,  12933, 

Laws  1915,  §12931.  20  Jud.  Act,  ch.  23,  §127;   Comp. 

As  to  when  the  conveyance  is  to  be  Laws  1915,  §  12942. 
made    to    the    executor    or    adminis- 


766  Executions  §  79 

The  right  and  title  of  the  person  against  whom  the 
execution  was  issued  to  any  real  estate  sold  thereby  is 
not  divested  by  the  sale  until  the  expiration  of  fifteen 
months  from  the  time  of  the  sale,  when,  if  the  real  estate 
has  not  been  redeemed  and  a  deed  has  been  executed  in 
pursuance  of  the  sale,  the  grantee  in  such  deed  is  deemed 
vested  with  the  legal  estate  from  the  time  of  the  sale  on 
execution,  for  the  purpose  of  maintaining  an  action  for 
any  injuiy  to  such  real  estate.^^  Neither  at  common  law 
nor  by  statute  is  the  purchaser  entitled  to  the  rents  and 
profits  before  his  title  becomes  absolute.  The  judgment 
debtor  has  the  right  to  these,  and  he  may  make  the  cus- 
tomary use  of  the  lands  himself  or  rent  them,  if  that 
seems  the  preferable  mode  of  rendering  them  profitable 
while  his  right  continues.^'' 

In  the  case  of  leaseholds,  it  is  the  duty  of  the  officer 
making  the  sale  to  execute  to  the  purchaser  a  conveyance 
of  the  leasehold  interest  within  ten  days  after  the  sale. 
If  the  unexpired  term  of  the  lease  exceeds  three  years 

21Jud.  Act,  ch.  23,  §113;    Comp.  sheriff   had   been   lost.      Whiting   v. 

Laws  1915,  §  12928;  Whipple  v.  Far-  Butler,  29  Mich.  122. 

rar,  3  Mich.  436.  A  deed  to  consummate  an  execu- 

As   to  actions   for   the   injury   to  tion  sale,  executed  before  the  time 

lands  committed  after  the  sale  and  for  redemption  has  expired,  is  void, 

before  the  conveyance,  see  Jud.  Act,  and  is  not  afterwards  made  valid  by 

eh.    23,    §  114;     Comp.    Laws    1915,  the  failure  to  redeem  within  the  stat- 

§  12929.  utory    time.      Gorham    v.   Wing,    10 

The    certificate    of    sale    and    the  Mich.  486. 

deed  are  the  purchaser's  evidence  of  Where  the  execution  ran  against 

title.    Cook  v,  Knowles,  38  Mich.  316.  two  persons,  the  deed  is  not  defec- 

The  title  of  a  purchaser  of  realty  tive  because  using  the  singular  num- 

at  an  execution  sale  is  not  complete  ber  in  a  recital  not  essential  to  the 

until    he    obtains   a   deed    from    the  deed,  such  as  the  statement  that  real 

sheriff.     Cook  v.  Knowles,  38  Mich.  estate  was  levied  on  because  personal 

316;  Gorham  v.  Wing,  10  Mich.  486.  property  could  not  be  found.     John- 

Where  there   is  no   valid   redemp-  son  v.  Crispell,  39  Mich.  82. 

tion,  a  junior  purchaser  of  the  prop-  82  Ward   v.   Carp   River  Iron  Co., 

erty  cannot  insist,  as  against  a  judg-  47  Mich.  65;   Whiting  v.  Butler,  29 

ment   debtor   and   the  purchaser   at  Mich.    122;    Whipple    v.    Farrar,    3 

a  prior  sale,  that  the  right  of  such  Mich.  436;  Pike  v.  Halpin,  188  Mich, 

prior  purchaser  to  a  deed  from  the  447. 


§  79  ■  Executions  767 

at  the  time  of  the  sale,  the  conveyance  should  be  exe- 
cuted and  acknowledged  in  manner  and  form  to  entitle 
it  to  be  recorded  in  the  office  of  the  register  of  deeds. 
The  purchaser  is  entitled  to  immediate  possession  and 
the  conveyance  may,  and  should,  be  deposited  at  once 
with  the  register  of  deeds,  but  it  should  not  be  recorded 
until  the  expiration  of  a  year  from  the  day  of  sale,  in 
which  time,  if  redemption  is  made,  the  conveyance  be- 
comes void.^^ 

Form  of  Deed  by  Sheriif  to  Purchaser  of  Real  Estate  Sold  on  Fieri  Facias 

This  indenture,  made  the day  of ,  in  the  year  one  thousand 

nine  hundred  ,  between  S.  T.,  sheriff  of  the  county  of ,  party 

of  the  first  part,  and  E.  F.,  of ,  party  of  the  second  part,  witnesseth: 

Whereas,  by  virtue  of  a  writ  of  fieri  facias  issued  out  of  the  circuit  court 

for  the  county  of ,  in  favor  of  A.  B.  and  against  C.  D.,  directed  and 

delivered  to  the  then  sheriff  of  said  county,  commanding  him  that,  of  the 
goods  and  chattels  of  the  said  C.  D.  in  his  county,  he  should  cause  to  be 
made  certain  money  specified  in  said  writ,  and,  if  sufficient  goods  and  chat- 
tels of  the  said  C.  D.  could  not  be  found  in  said  county,  that  then  he  should 
cause  said  moneys  to  be  made  from  the  lands  and  tenements  of  the  said 
C.  D.  within  his  county,  as  will  more  fully  appear  by  the  said  writ  now  on 
file  in  said  court; 

And  whereas  suflScient  goods  and  chattels  of  the  said  C.  D.  could  not  be 
found  in  said  county,  whereof  he,  the  said  sheriff,  could  cause  to  be  made 
the  moneys  specified  in  said  writ,  and  therefore  the  said  sheriff  levied  upon 
and  took  all  the  right,  title  and  interest  of  the  said  C.  D.  in  and  to  the 
lands  hereinafter  described,  with  the  appurtenances  thereunto  belonging  or 

in   any  wise  appertaining,  and  did,   on  the    day   of    ,  A.  D. 

,  sell  the  said  lands  at  public  vendue,  at   (here  specify  the  place), 

in  said  county,  in  the  manner  provided  by  statute  and  after  giving  notice 
of  sale  according  to  law; 

And  whereas,  at  said  sale,  the  said  lands  were  struck  off  and  sold  to 

E.  F.  aforesaid,  for  the  sum  of dollars,  that  being  the  highest  sum 

bid  for  the  same; 

And  whereas  the  said  sheriff,  after  receiving  from  the  said  E.  F.  the 
sum  of  money  last  hereinbefore  mentioned,  gave  to  the  said  E.  F.  a  certi- 
ficate of  sale  in  form  and  manner  as  is  required  by  law,  which  said  certifi- 
cate was  duly  filed  in  the  office  of  the  register  of  deeds  of  the  said  county 
of ; 

And  whereas  fifteen  months  have  elapsed  since  said  sale  and  the  giving  of 

23Jud.    Act,    ch.    23,    §§143-145; 
Comp.  Laws  1915,  §§  12958-12960. 


768  Executions  §  79 

said  certificate,  and  the  said  lands  have  not  been  redeemed  according  to 
law: 

Now,  this  indenture  witnesseth,  that  the  said  party  of  the  first  part,  in 
pursuance  of  the  statute  in  such  case  made  and  provided  and  in  considera- 
tion of  the  said  sum  of  money  so  paid  by  the  said  E.  F.  as  aforesaid,  has 
granted,  bargained,  sold,  released,  assigned  and  conveyed,  and  by  these 
presents  does  grant,  bargain,  sell,  release,  assign  and  convey,  unto  the  said 
party  of  the  second  part,  his  heirs  and  assigns  all  the  right,  title  and  in- 
terest which  the  said  C.  D.   had,   on  the    day   of    ,   A.   D. 

(the  date  of  the  levy),  or  at  any  time  thereafter,  in  and  to  the 

lands  aforesaid  and  the  appurtenances  all  and  singular  thereunto  belonging 
or  in  any  wise  appertaining,  which  said  lands  are  described  as  follows: 
(Here  describe  tlie  property.)  To  have  and  to  hold  the  said  lands  and 
tenements,  with  the  appurtenances  aforesaid,  unto  the  said  party  of  the 
second  part,  his  heirs  and  assigns  forever,  as  fully  and  absolutely  as  the 
said  party  of  the  first  part,  as  sheriff  as  aforesaid,  can,  may  or  ought,  by 
virtue  of  the  premises,  to  grant,  bargain,  sell,  release,  assign  and  convey 
the  same. 

In  witness  whereof,  the  said  party  of  the  first  part  has  hereunto  set  his 
hand  and  seal  the  day  and  year  first  above  written. 

S.  T.   [L.  S.] 

Signed,  sealed,  and  delivered  in  presence  of  Sheriff. 

W.  S. 
J.  B. 

(Add  acknowledgment.) 

§  80.  Time  for  taking  and  recording  conveyance. 

The  legal  holder  of  the  certificate  of  sale  of  real  estate 
under  execution  is  entitled  to  a  conveyance  as  soon  as 
the  time  for  redemption  has  expired,  if  redemption  has 
not  within  that  time  been  effected.  But  if  the  convey- 
ance is  not  taken  and  recorded  within  ten  years  from  the 
expiration  of  the  time  for  redemption,  the  certificate  of 
sale  becomes  null  and  void.^* 

H.  Payment  and  Discharge 

§81.  Payment. 

The  ofticer  has  no  authority  to  receive  anything  in 
payment  except  legal  currency.^*    Where  one  of  the  exe- 

24Jud.  Act,  ch.  2.3,  §119;    Comp.  25  Heald  v.  Bennett,  1  Doug.  51.3. 

Laws  1915,  §  129.34;  Pike  v.  Halpin, 
188  Mich.  447;  Bliss  v.  Slater,  144 
Mich.  648. 


§  83  Executions  769 

cution  debtors  pays  the  execution,  he  may  recover  from 
his  solvent  co-debtors  their  proportionate  share.^® 

§  82.  Certificate  of  satisfaction. 

When  an  execution  levied  on  real  estate  is  fully  paid, 
satisfied  or  discharged,  it  is  the  duty  of  the  clerk  of  the 
court  that  issued  such  execution  to  give  to  defendant  a 
certificate  that  it  is  satisfied  or  discharged,  and  such 
certificate  may  bo  recorded  in  the  same  manner  as  pro- 
vided for  the  recoi'ding  of  the  notice  of  a  levy  on  real 
estate.^' 

In  all  cases  of  redemption  of  lands  sold  on  execution 
or  of  payment  of  the  judgment,  where  the  record  in  the 
office  -of  the  register  of  deeds  shows  a  levy,  it  is  the  duty 
of  the  officer  making  the  sale  or  of  the  person  who  re- 
ceived the  money  or  his  attorney  to  discharge  the  levy  or 
judgment  from  the  record.^* 

III.  Body  Executions 

§  83.  When  proper,  time  for  and  effect  of. 

It  is  the  intent  of  a  capias  ad  satisfaciendum  to  im- 
prison the  body  of  the  debtor  until  satisfaction  be  made 
for  the  debt,  costs  and  damages,  and  it  therefore  did  not 
lie  at  the  common  law  against  any  privileged  persons, 
peers  or  members  of  parliament,  or  against  executors  or 
administrators,  or  against  such  other  persons  as  could 
not  be  held  to  bail.^®  In  j\lichigan,  it  lies  by  statute  "in 
the  cases  authorized  by  law,"  ^^  which  must  be  either  by 

26  Tliornton  v.  Damni,  120  Mich.  the  body  of  any  executor,  adminis- 
olO.  trator,  heir,  devisee   or  legatee,  ex- 

27  Jud.  Act,  ch.  2.{,  §  83 ;  Comp.  ccpt  in  cases  specially  provided  by 
Laws  1915,  §12898.  law.     Jud.  Act,  ch.   2:'.,  §4;    Comp. 

28  Jud.  Act,  eh.  23,  §147;   Comp.  Laws  1915,  §12819. 

Laws  1915,  §  12962.  No  female  can  be  imprisoned.   See 

29;',  Cooley's  Bl.  Comm.  414.  Commencement  of  Action.s. 

30  Jud.    Act,    ch.    23,    §3;    Comp.  By    statute,    an    execution   cannot 

Laws  1915,  §  12818.  1)0  iss\ii'd,  directed  both  against  the 

Exeention    cannot     issue     against  inoiicity    and   the.   body    of   the   de- 
1  Abbott— 49 


770  Executions  §  83 

existlii.U'  statute  or  by  common  law.  Tho  common-law 
rule  was  that  a  capias  ad  satisfaciendum  could  be  issued 
in  those  cases,  and  those  only,  in  whicli  the  suit  might 
have  been  commenced  by  capias  ad  respondendum,  or, 
in  other  words,  when  the  latter  was  the  immediate  proc- 
ess upon  the  original  writ;  the  only  exception  to  which 
was  the  case  of  an  attorney  or  officer  of  the  court,  who 
might  be  taken  in  execution,  althoug^h  sued  by  bill. 
Originally  the  capias  ad  satisfaciendum  lay  at  common 
Jaw  only  in  trespass  vi  et  armis;  but,  as  statutes  were 
subsequently  passed  in  England  giving  the  capias  ad 
respondendum  as  the  mesne  process  in  other  cases,  the 
capias  ad  satisfaciendum  was  held  to  follow  as  a  common 
law  incident. ^^  Tt  may  therefore  be  stated,  as  the  general 
rule,  that  the  plaintiif  may  have  a  capias  ad  satisfacien- 
(him  upon  his  judgment  in  any  suit  which  might  have 
])een  connnenced  by  capias  ad  respondendum,  whether  it 
actually  was  so  commenced  or  otherwise,  but  not  in  any 
suit  which  could  not  have  been  commenced  by  capias  ad 
respondendum.^^  Thus,  the  capias  ad  satisfaciendum  is 
ap])ropriate  in  actions  on  contract,  express  or  implied, 
to  recover  damages  for  any  breach  of  promise  to  marry 
where  fraud  is  alleged,  or  for  moneys  collected  by  any 
public  oflficer,  or  for  any  misconduct  or  neglect  in  office 
or  in  any  professional  employment,  or  in  case  of  fraud  or 
bi'each  of  trust,  and  also  in  actions  of  tort  in  general,  but 
not  in  replevin  ^^  or  ejectment. 

hi  those  cases  in  whicli  bail  has  been  taken  on  the 
arrest  of  a  defendant,  and   the  ])ail  bond  has  been  as- 

fendant,  unless  by  an  orrlor  of  court,  Jiulfje,  180  Mieh.  6311,  holding  it  inl- 
and where  there  is  no  order  such  material  that  action  was  in  fact  com- 
an  execution  is  void  and  incai)ahle  nienced  by  summons;  Hunt  v.  Bur- 
of  amendments.  Sink  v.  Oceana  Oir-  dick,  42  Vt.  610;  Wesson  v.  Cham- 
cuit  Judge,  146  Mich.  121.  berlain,    3    N.    Y.    331;     Eames    v. 

31  Fuller  v.  Bowker,  11   Mich.  204.  Stevens,  26  N.  H.  117. 

32  Fuller  v.  Bowker,  11  Mich.  204;  33  Fuller  v.  Bowker,  11  Mich.  204; 
Forsythe      v.      Washtenaw      Circuit  Tomlin  v.  Fisher,  27  Mich.  524. 


§  83  Executions  771 

si,ij;Tied  to  the  plaintiff,  and  in  tlioye  cases  in  which  spe- 
cial bail  has  been  filed,  no  execution  can  issue  against 
the  body  of  the  defendant  in  the  action  until  an  execu- 
tion against  the  goods  and  chattels,  lands  and  tenements 
of  the  defendant  has  been  issued  to  the  sheriff  or  other 
proper  officer  of  the  county  in  which  the  defendant  was 
arrested  and  has  been  returned  unsatisfied  in  whole  or  in 
part.'*  But  if  the  defendant  be  imprisoned  on  execution 
in  another  cause,  or  upon  jDrocess  in  the  same  action,  or 
upon  the  surrender  of  the  defendant  in  exoneration  of 
his  bail  in  such  action,  or  if  an  execution  has  been  re- 
turned unsatisfied  as  just  referred  to,  an  execution  may 
in  either  case  issue  against  the  body  of  the  defendant;'^ 
but  no  execution  against  the  body  of  a  person  can  issue 
while  there  is  an  execution  against  his  property  not  re- 
turned, unless  by  order  of  the  court  rendering  tlie  judg- 
ment.'^ 

When  the  body  of  a  ])arty  has  been  taken  on  an  execu- 
tion issued  for  that  purpose,  no  other  execution  can  be 
issued  against  liim  or  his  property,  except  in  the  cases 
specially  provided  by  law;  but  if  any  person  who  has 
been  taken  on  an  execution  escapes,  he  may  l)e  retaken 
by  a  new  execution  against  his  body,  or  an  execution 
against  his  property  may  be  issued  in  the  same  manner 
as  if  no  execution  has  been  previously  issued.'''' 

When  tlie  delendant,  at  the  time  judgment  is  rendered 
against  him  in  a  court  of  record,  is  in  the  custody  of  a 
sheriff  or  other  officer,  either  u])on  process  in  the  suit  in 
whicli  tile  judgment  was  rendered  or  upon  being  sur- 
rendered in  discharge  of  his  bail  in  such  suit,  the  i)laiii- 
tilT  nmst  charge  the  defendant  in  execution  within  three 

34Jud.    Act,   oh.   2.'],    §26;    Coinp.  36  Ju.l.   Act,  ch.   2:!,   nO;    Comp. 

Laws    1915,    U2841;    Fish^  v.    Bar-  Laws  1915,  §  12825. 

bour,  43  Mich.  19;   De  Myer  v.  Mc-  87  Jud.    Act,    ch.    2:?,    §S  28,    29; 

Gonegal,  32  Mich.  120.  Comi..    Laws   1915,   §§12843,   12844. 

35, Jud.    Act,   ch.   23,    §27;    Comp. 
Laws  1915,  §  12842. 


772  Executions  §  83 

months  after  the  hist  day  of  the  term  next  folknvin*;-  that 
on  wliich  the  judgment  has  been  obtained.^*  And,  when 
a  defendant  is  in  custody  upon  surrender  in  discharge 
of  his  bail  made  after  judgment  obtained  against  him 
and  such  bail  is  thereupon  exonerated,  tlie  plaintiff  must 
charge  the  defendant  in  execution  within  three  months 
after  such  surrender,  or,  if  an  execution  against  the 
property  of  the  defendant  has  been  issued,  within  three 
months  after  the  return  day  of  such  execution.^®  If  the 
plaintiff  neglects  so  to  charge  the  defendant  in  execu- 
tion, the  defendant  may  be  discharged  from  custody  by 
a  supersedeas,  to  be  allowed  by  any  judge  of  the  court 
in  which  the  judgment  has  been  obtained,  unless  good 
cause  to  the  contrary  be  shown,  and,  after  being  so  dis- 
charged, the  defendant  will  not  be  liable  to  be  arrested 
upon  any  execution  which  may  be  issued  upon  the  judg- 
ment.*" An  execution  issued  after  the  expiration  of  the 
three  months  is  prima  facie  a  nullity.*^  The  removal 
by  the  defendant  of  the  cause  to  the  supreme  court,  no 
stay  bond  being  filed,  is  no  excuse  for  the  plaintilT's 
failure  to  charge  the  defendant  within  three  months, 
since  the  plaintiff  was  at  liberty  to  proceed  in  the  usual 
manlier  to  collect  his  judgment,"  nor  is  the  pendency  of 
other  proceedings,  whether  at  law  or  in  chanceiy."  But 
what  circumstances  constitute  "good  cause"  for  the 
delay  of  the  plaintiff  is  a  matter  resting  in  the  sound 
discretion  of  the  court.** 

S8Jud.   Act,   cl).   23,    §23;    Comp.  43  Mctcalf    v.    Moore,    128    Mich. 

Laws  1915,  §  12838.  138;     Lapham     v.    Oakland    Circuit 

39,Jud.   Act,   cli.   23,   §24;    Comp.  Judge,  170  Mich.  56-4. 

Laws  1915,  §  12839.  44  Lapham     v.     Oakland     Circuit 

40Jud.   Act,   ch.   23,   §25;    Comp.  Judge,  170  Mich.  564,  holding  good 

Laws  1915,  §  12840.  cause  shown  where  defendant's  at- 

41  In  re  Lauer's  Estate,  184  Mich.  torneys   frequently  assured  plaintiff 
497.  their  client  would  settle  and  negotia- 

42  Douglass    v.    Manistee    Circuit  tions   for  a  compromise  were  pend- 
Judge,  42  Mich.  495.  ing. 


§84  Executions  773 

§  84.  Form  of  writ. 

A  capias  ad  satisfaciendum  in  form  commands  the 
sheriff  of  the  comity  or  other  proper  officer  to  take  the 
defendant,  if  he  may  be  found  in  his  county,  and  safely 
keep  him  so  that  tlie  officer  may  have  the  body  of  the 
defendant  before  the  court  on  the  return  day  to  satisfy 
the  phuntiff  the  sum  of  money  due  upon  the  judgment. 
The  writ  should  be  styled,  directed,  tested,  subscribed, 
sealed  and  made  returnable  in  the  same  manner  as  a  fieri 
facias,  and  must,  in  like  manner,  identify  and  confonii 
to  the  judgment  upon  which  it  is  based. 

Form  of  Capias  ad  Satisfaciendum 

In  the  Name   of   the  People  of  the  State   of  Michigan. 
To  the  Sheriff  of  the  County  of ,  Greeting: 

You  are  hereby  commanded  to  take  C.  D.,  defendant,  if  he  can  be  found 
within  your  county,  and  him  safely  keep,  so  that  you  may  have  his  body 

(before  the   circuit  court  for  the  county  of    ,  at    ,  on   , 

to  satisfy  A.  B.,  plaintiff,    dollars,  which  the  said  plaintiff  lately 

in  the  circuit  court  for  the  county  of   recovered  against  the  said 

defendant  for  his  damages  which  he  had  sustained  [if  the  action  is  ex 
delicto  substitute  for  what  follows:  "as  well  on  occasion  of  a  certain 
grievance,  theretofore  committed  by  the  said  defendant  against  the  said 
plaintiff  as  for  the  costs  and  charges  by  the  said  plaintiff  about  his  suit  in 
that  behalf  expended,  whereof  the  said  defendant  is  convicted,  as  appears 
of  record  in  said  court;  and  have  you  then  and  there  this  writ."  Or,  if 
the  action  be  for  conversion,  substitute  for  what  follows:  "as  well  ou 
occasion  of  the  conversion  of  certain  goods  and  chattels  of  the  said  plaintiff 
by  the  said  defendant  as  for  the  costs  and  charges  by  the  said  plaintiff 
about  his  suit  in  that  behalf  expended,  whereof  the  said  defendant  is 
convicted,  as  appeai-s  of  record  in  said  court;  and  have  you  then  and 
tliore  this  writ."]  as  well  by  reason  of  the  nonperformance  of  certain 
promises  and  undertakings  theretofore  made  by  the  said  defendant  to  the 
said  plaintiff  as  for  the  costs  and  charges  by  the  said  plaintiff  about  his 
suit  in  that  behalf  expended,  whereof  the  said  defendant  is  convicted,  as 
appears  of  record  in  said  court;  and  have  you  then  and  there  this  writ. 

Witness,  Hon.  J.  S.,  circuit  judge,  at ,  this day  of , 

in  the  year  

C.  K., 
Clerk. 

J.  K.,  Attorney  for  I'lrniitiff. 
Business  address:    ,  Mich. 


774  ExEcuTioN.s  §  84 

Form  of  Alias  Capias  ad  Satisfaciendum 
In  the  Name  of  the  People  of  the  State  of  Michigan. 

To  the  Sheriff  of  the  Ck)uuty  of ,  Greeting: 

You  are  hereby  commanded,  as  you  have  been  before  commanded,  that 
you  take  C.  D.,  if  he  can  be  found  in  your  county,  and  him  safely  keep 
(proceed  from  this  point  as  in  other  AVTits  of  capias  ad  satisfaciendum). 

Form  of  Pluries  Capias  ad  Satisfaciendum 

In  the  Name  of  the  People  of  tlie  State  of  Michigan. 

To  the  Sheriff  of  the  County  of ,  Greeting: 

You  arc  hereby  commanded,  as  you  have  oftentimes  before  been  com- 
manded, that  you  take  C.  D.,  if  he  may  be  found  in  your  county,  and  him 
safely  keep  (proceed  from  this  point  as  in  other  writs  of  capias  ad 
satisfaciendum). 

§  85.  Service  of  writ. 

It  is  llio  duty  of  tlie  slierilt'  to  execute  the  capias  ad 
satisfaciendum  in  obedience  to  the  commands  of  the  writ, 
l)y  arresting  the  defendant,  if  he  can  be  found  in  the 
county,  and  keeping  him  under  arrest  until  he  is  dis- 
charged according  to  hnv.  The  officer  must  use  all  rea- 
sonable endeavor  to  execute  the  writ,  notwithstanding 
any  direction  he  may  receive  from  the  plaintiif  or  his  at- 
torney.*^ The  statute  provides  that,  whenever  any  per- 
son is  arrested  by  virtue  of  an  execution  issued  upon  any 
judgment,  he  shall  be  safely  kept  in  secure  custody,  in 
the  manner  prescribed  by  law,  at  his  own  expense,  until 
he  shall  satisfy  the  execution  or  Ix'  discharged  according 
to  law.*<5 

§  86.  Bond  for  liberty  of  jail  limits. 

Every  person  in  custody  of  a  sheriff  by  virtue  of  an 
execution  in  a  civil  action  or  in  consequence  of  a  sur- 
render in  exoneration  of  his  bail  is  entitled  to  the  liberty 

45  Jvul.    Act,   ch.   2'),    §16;    Comp.  Prison  regulations  permissible,  see 

Laws  1915,  §  12994.  Leach  v.  Whitbeck,  151  Mich.  327. 

46Jud.  Act,  ch.   23,    §30;    Comp. 
Laws  1915,  §  12845. 


§  8fi  EXECITTTOXS  775 

of  the  jail  limits  (which  are  co-extensive  with  the  limits 
of  the  county),  upon  executing  a  bond  to  the  sheriff  and 
his  assigns,  with  one  or  more  sufficient  sureties  who  are 
inhabitants  and  householders  of  the  county,  in  a  penalty 
not  less  than  double  the  amount  directed  to  be  levied  by 
the  execution,  conditioned  that  he  shall  not,  at  any  time 
or  in  any  manner,  escape  or  go  without  the  jail  limits  of 
the  county,  until  legally  discharged.*'  The  bond  is  held 
for  the  indemnity  of  the  sheriff  taking  it  and  of  the  party 
at  whose  suit  the  prisoner  Avas  confined.*^  It  is,  in  effect, 
a  substitute  for  the  custody  of  the  sheriff,  and,  after  the 
prisoner  has  been  admitted  to  the  liberty  of  the  jail 
limits,  the  sheriff  has  no  longer  any  power  over  him, 
either  to  restrain  or  discharge  him.'*®  If,  however,  the 
sheriff  discovers  that  any  surety  on  the  bond  is  insuffi- 
cient, he  has  power  to  commit  the  prisoner  who  executed 
it  to  close  confinement  in  jail  until  other  good  and  suffi- 
cient sureties  are  offered.^'' 

The  sureties  in  a  bond  for  the  liberty  of  the  jail  limits 
may  surrender  their  principal  to  the  keeper  of  the  jail 
at  any  time  before  a  judgment  has  been  rendered  against 
them  on  the  bond,  but  they  will  not  be  thereby  exon- 

47Jud.     Act,     ch.     25,     §§22-24;  sheriff,  on  the  demand  of  the  latter, 

Comp.  Laws  1915,  §§13000-13002.  is  bound  thereby.     Kruse  v.  Kings- 

The  bond  is  not  invalid  merely  be-  bury,  102  Mich.  100. 

cause  of  clerical  mistakes,  especially  The  bond  will  not   support  a  re- 

where  immediately  corrected.     In  re  covery  thereon  where  it  recites  that 

Friedrich,  113  Mich.  468.  the  principal  was  in  custody  by  vir- 

The  bond  stands  as  an  indemnity  tue  of  a  capias  ad  respondendum  in- 
to the  officer  and  to  the  judgment  stead  of  a  capias  ad  satisfaciendum, 
creditor,  and  also  to  the  successor  of  Gunn  v.  Geary,  44  Mich.  615. 
the   officer   without  any  written  as-  For  form  of  bond,  see  B.ml. 
signment  to  him,  and  on  breach  of  48  Jud.   Act,   ch.   25,    §25;    Comp. 
the  bond  the  latter  may  assign  it  to  Laws  1915,  §  13003. 
the  party   for   whose   benefit  it   was  49  Kruse  v.   Kingsbury,  102  Mich, 
given.    Where  a  new  bond  may  be  100. 

taken  in  place  of  an  old  one  a  per-  50  Jud.   Act,   ch.   25,   §26;    Comp. 

son  who  signs  such  a  bond  as  an  ad-  Laws  1915,  §  13004. 
ditional  surety,  after  delivery  to  the 


776  Executions  §  86 

erated  from  any  liability  incurred  before  the  making  of 
such  surrender.^^  To  effect  the  surrender,  the  bail  may 
take  their  principal  to  the  keeper  of  the  jail,  and,  upon 
the  written  requirement  of  the  bail,  the  keeper  will  take 
the  jn'incipal  into  his  custody  and  indorse  upon  the  bond 
an  acknowledgment  of  the  surrender  of  the  principal, 
and,  if  required,  will  give  the  bail  a  certificate  acknowl- 
edging such  surronder.^^  The  going  at  large  within  the 
jail  limits  by  a  prisoner  who  has  executed  a  bond  en- 
titling him  to  the  liberty  of  the  jail  limits  will  not  be 
deemed  an  escape;  but,  if  he  goes  at  large  beyond  such 
limits  without  the  assent  of  the  party  at  whose  suit  he 
is  in  custody,  it  will  be  deemed  an  escape  and  forfeiture 
of  the  bond,  and  the  sheriff  will  have  the  same  authority 
to  pursue  and  re-take  the  prisoner  as  if  the  escape  had 
been  made  from  the  jail.®*  In  case  of  an  escape,  the  plain- 
tiff may  have  a  new  execution  against  the  body  or  an 
execution  against  the  property  of  the  defendant,®*  or  he 
may  luring  an  action  against  the  sheriff  for  the  escape,®® 
or  he  may  take  an  assignment  of  the  bond  for  the  liberty 
of  the  jail  limits  and  maintain  an  action  upon  it.®^  But, 
during  the  prosecution  of  such  an  action,  the  plaintiff 
cannot  take  out  a  new  execution  against  the  body  of  the 
defendant.®'''  The  acceptance  of  an  assignment  of  the 
bond  is  a  bar  to  any  action  by  the  party  receiving  the 
assignment  against  the  sheriff  for  the  escape.®'  In  case 
the  party  at  whose  suit  a  person  has  been  confined  to  the 
liberties  of  a  jail  refuses  or  neglects  to  take  an  assign- 
ment of  the  bond  and  prosecutes  the  sheriff  for  the  os- 

SlJiid.    Aot,   ch.   25,    §27;    Coiiip.  Wayne  Circuit  Judge,  127  Mich.  414. 

Laws  1915,  §13005.  55  Jud.   Act,   ch.   25,   §31;    Comp. 

62Jud.   Act,   ch.   25,    §28;    Comp.  Laws  1915,  §13009. 

Laws  1915,  §  13006.  66  Jud.    Act,    ch,    25,    §§37,    38; 

63  Jud.   Act,   ch.    25,   §29;    Comp.  Comp.  Laws  1915,  §§13015,  13016. 
Laws  1915,  §  13007;  Page  V.  Mitch-  67Grosslight     v.     Wayne     Circuit 
ell,  13  Mich.  63.  Jmlge,  127  Mich.  414. 

64  Jud.   Act,   ch.   23,    §29;    Comp.  58  Jud.   Act,   ch.   25,    §39;    Comp. 
Laws    ]9]5,    §12844;    Grosslight    v.  Laws  1915,  §  13017. 


§  86  Executions  777 

cape,  the  court  in  which  the  action  is  pending  will  stay 
all  proceedings  upon  the  judgment  against  the  sheriff 
until  he  has  had  a  reasonable  time  to  prosecute  the  bond 
taken  by  him  and  to  collect  the  amount  of  any  judgment 
he  may  recover  thereon;  ^^  but  the  sheriff  is  not  entitled 
to  a  stay  of  proceedings  where  the  judgment  against  him 
is  for  an  escape  committed  with  his  assent,  aid  or  as- 
sistance.^" 

Form   of   Count  Agaiaist  a   Sheriff  for   an  Escape  Under   a   Capias  ad, 

Satisfaciendum 

The  plaintiff   says: 

1.  That  the  said  plaintiff  heretofore,  to  wit,  in  the    term  of  the 

year  ......  of  the  circuit  court  for  the  county  of  j  by  the  con- 
sideration and  judgment  of  said  court,  recovered  against  one  CD 

dollars,  which  were  adjudged  to  the  said  plaintiff  in  and  by  said  court 
for  the  damages  which  he  had  sustained,  as  well  on  occasion  of  the  not 
performing  of  certain  promises  and  undertakings  before  that  time  made 
by  the  said  C  D.  to  the  said  plaintiff  as  for  his  costs  and  charges  by  the 
said  plaintiff  about  his  suit  in  that  behalf  expended.     2.  That  the  said 

plaintiff,  afterwards,  to  wit,  on    ,  sued  and  prosocutod  out  of  said 

court  a  writ  of  capias  ad  satisfaciendum  upon  the  said  judgment,  directed 

to  the  sheriff  of  the  county  of ,  by  which  said  writ,  the  said  sheriff 

was  commanded,  in  the  name  of  the  people  of  the  state  of  Michigan,  that 
he  should  take  the  said  C.  D.,  if  he  should  be  found  in  his  county,  and 
him  safely  keep,  so  that  the  said  sheriff  might  have  his  body  before  the 

court  aforesaid,  at  the  court  house,  in ,  in  said  county,  on  the 

day  of    ,  A.  D ,  to   satisfy   the  said   plaintiff  the  damages 

and  costs  aforesaid,  and  that  the  said  sheriff  should  have  then  and  there 
that  writ.  3.  That  said  writ  afterwards,  and  before  the  delivery  thereof 
to  the  said  sheriff  to  be  executed,  was  duly  indorsed  with  a  direction  to 

the   said   sheriff   requiring   him   to   levy   the   sum   of    dollars,   with 

interest  from  the day  of ,  A.  D ,  besides  his  fees,  etc. 

4.  Tluit  said  writ,   so    indorsed   as   aforesaid,   afterwards,   and   before   the 

said  return  thereof,  to  wit,  on    ,  at ,  in  the  county  aforesaid, 

was  delivered  to  the  said  S.  T.,  wlio  then  and  thenceforth,  until,  at,  and 
after  the  return  of  the  said  writ,  was  sheriff  of  said  county,  to  be  executed 
according  to  law.  5.  That,  by  virtue  of  said  writ,  and  of  the  indorsement 
thereon  aforesaid,  the  said  S.  T.,  afterwards,  and  before  the  said  return 

of  the  said  writ,  to  wit,  on ,  and  within  his  county,  to  wit,  at , 

arrested  the  said  C.  D.  and  detained  him  in  his  custody  in  execution  for 
the  said  sum  of  money  mentioned  in  and  indorsed  on  tlie  said  writ  and  the 

59Jud.   Act,   eh.   25,    §41;    Comp.  60Jud.    Act,   ch.   25,    §42;    Comp. 

Laws  1915,  §  13019.  Laws  1915,  §  13020. 


778  Executions  §  86 

interest  thereon  an<l  the  fees  of  the  said  sheriff  from  that  time  until  the 

said  defendant  to  wit,  on   ,  at   ,  without  leave  or  license  and 

against  the  will  of  the  said  plaintiff,  permitted  the  said  C.  D.  to  escape  and 
go  at  large  out  of  his  custody.  6.  That  the  said  sum  of  money  so  in- 
dorsed on  the  said  writ,  together  with  the  fees  and  interest  aforesaid  are 
wholly  unpaid  and  unsatisfied  to  tha  said  plaintiff.  7.  That  the  said 
defendant,  although  requested  so  to  do,  has  not  paid  the  said  sum  of 
money,  or  any  part  thereof,  to  the  said  plaintiff. 

§  87.  Return  of  writ. 

It  is  the  duty  of  the  officer  to  whom  a  capias  ad  satis- 
faciendum has  been  delivered  to  make  due  return  of  the 
manner  in  which  he  has  served  it.  If  the  amount  to  be 
collected  on  the  w^rit  has  been  paid  to  the  officer,  he  should 
return  the  writ  satisfied.  If  he  has  not  been  able  to  find 
the  defendant  in  his  county,  he  should  make  return  ac- 
cordingly, showing  that  he  has  made  diligent  search  and 
inquiry  for  him  in  his  county,  but  that  he  has  not  found 
the  defendant  therein.  If  the  sheriff  has  taken  the  de- 
fendant, he  should  return  that  fact  and  that  he  has  him 
in  custody,  whether  in  .jail  or  within  the  jail  limits.^^ 

The  return  to  a  capias  ad  satisfaciendum  may  be  com- 
pelled by  the  party  interested  in  procuring  the  return  as 
in  other  cases  where  the  sheriff  fails  to  make  return  to 
a  writ.62 

§  88.  Proceedings  upon  return  of  not  found. 

Upon  a  return  of  the  writ  that  the  defendant  was  not 
found,  the  plaintiff  may  have  an  alias  writ,^^  upon  the 
return  of  which  also  that  the  defendant  was  not  found, 
pluries  writs  may  be  issued  until  the  defendant  be  found 
or  the  judgment  be  satisfied.  And,  as  the  recovery  of 
the  judgment  against  the  defendant  and  his  failure  either 
to  pay  the  costs  and  condemnation  of  the  court  or  to 

61  A  return  that  defendant  cannot  county.     Lichfelt  v.  Kopp,  38  Mich, 

be  found  "within  my  bailiwick"  is  312. 
equivalent  to  a  return  that  he  could  62  Cir.  Ct.  Bule  20. 

not    be    found    within    the    sheriff's  63  People  v.  Kehl,  15  Mich.  330. 


§  89  Executions  779 

render  himself  into  the  custody  of  the  sheriff  for  the 
same  constitute  a  breach  of  the  recognizance  of  special 
bail,  the  plaintiff  may  commence  an  action  therefor  upon 
such  recognizance;^*  but  this  cannot  be  done  until  an 
execution  against  the  body  of  the  defendant,  having  at 
least  fifteen  days  between  the  teste  and  the  return,  has 
been  issued  to  the  sheriff  of  the  county  in  whicli  the  de- 
fendant was  arrested  on  the  capias  ad  respondendum  and 
has  been  returned  that  the  defendant  could  not  be  found 
within  his  county.®^  A  return  of  "unsatisfied"  would 
be  insufficient  as  a  basis  of  action  upon  the  recognizance.^® 

§  89.  Expense  of  keeping:  person  in  jail. 

The  statute  provides  that,  whenever  a  person  has  been 
committed  to  jail  by  virtue  of  an  execution  on  a  judg- 
ment in  a  civil  suit,  the  party  at  whose  instance  he  is  im- 
prisoned must,  on  demand,  pay  to  the  sheriff  or  tlie  keeper 
of' the  jail  the  expense  of  the  board  and  keeping  of  the 
prisoner.  The  sheriff'  or  keeper  is  not  required  to  retain 
the  prisoner  in  jail  any  longer  than  such  expense  is  paid 
in  advance.  Such  expenses  do  not  constitute  any  charge 
against  the  county.®'''  In  case  the  prisoner  is  released  be- 
cause of  the  failure  of  the  plaintiff'  to  pay  the  expenses 
of  his  keeping,  the  bail  are  discharged,®*  and,  inasmuch 
as  the  imprisonment  of  the  defendant,  if  under  a  valid 
writ,  operates  as  a  satisfaction  of  the  judgment,  his  re- 
lease from  custody  on  account  of  the  failure  of  the  plain- 
tiff to  pay  the  expenses  of  his  keeping  will  not  revive  the 
judgment.®^ 

64,Jud.    Act,    ch.    25,    §2;    Comp.  §1;    Oomp.   Laws   191"),   §12816. 

Laws  1915,   §12980.  66  Bainimi  v.  Wntorhui y,  ."VS  Mich. 

66.Tud.   Act,   ch.   25,    §15;    Coiiip.  280. 

Laws  1915,  §1299:5.  67  Jud.   Act,  ch.   25,   §49;    Comp. 

The  execution  should  be  made  re-  Laws  1915,  §  l.']027. 

turnable  in  not  less  then  twenty  nor  68  Prior   v.  nodrie,  49   Mich.   200. 

more  than  ninety  days  from  the  time  69Strawsine  v.  Salisl)ury,  75  Miili. 

of    its    issuance.      .Jud.   Act,   ch.   2.3,  542. 


780  Executions  §00 

§  90.  Discharge  as  poor  debtor. 

Chapter  43  of  the  Judicature  Act,  Comp.  Laws  1915, 
§  13617  et  seq.,  which  is  merely  a  re-enactment  of  the 
existing  statutes,  provides  in  detail  for  the  relief  of  poor 
debtors  who  are  imprisoned  by  virtue  of  one  or  more  ex- 
ecutions in  civil  causes. 

EXECUTORS  AND  ADMINISTRATORS 

§  1.  Actions  by. 

§  2.  Set-off. 

§  3.  Actions   against. 

§  4.  Suljstitution   as   defendants. 

§  5.  Costs  and  executions. 

Cross-Beferences:  Probate  Courts  (including  appeals  to  circuit 
courts);  Error,  Writ  of;  Bill  of  Exceptions;  Mandamus;  Abatement; 
Keplevin;  Ejectment;  Parties;  Judgaient;  Executions;  Costs;  Limi- 
tation OF  Actions. 

§  1.  Actions  by. 

Actions  upon  contracts  may  he  maintained  by  execu- 
tors or  administrators  in  all  cases  in  which  the  same 
might  have  been  maintained  by  their  respective  testators 
or  intestates.^  So  by  statute,  they  may  sue  to  recover 
property  fraudulently  conveyed  where  there  is  a  de- 
ficiency of  assets,'^  or  to  foreclose  mortgages.^  They  may 
also,  before  the  heir  comes  into  possession  of  the  inheri- 

1  Jud.    Act,   ch.    55,    §  17 ;    Comp.  Hollowcll  v.  Cole,  25  Mich.  345. 

Laws  1915,  §  13880.  A  devisee  or  legatee  cannot  rep- 

A  son  and  sole  heir  of  a  deceased  resent  the  estate  in  the  prosecution 

party,  upon  whose  estate  an  admin-  or  defense  of  suits.    Hillman  v.  Mil- 

istrator     has     been     appointed     and  ler,  68  Mich.  297. 

qualified,    and    hasi    not    been    dis-  2Jiui.    Act,    ch.    54,    §15;    Comp. 

charged,  has  no  authority  to  enforce  Laws    1915,    §1.3859;    Bresnahan    v. 

collection    in    his    own    name    of    a  Nugent,    106    Mich.    459.      See    also 

claim  which  has  existed  in  favor  of  Griffin  v.  Hovey,  179  Mich.  104. 

such    decedent    during    his    lifetime  Eight  of  creditor  to  sue,  see  Allen 

against    the    estate    of    another    de-  v.  Powers,  196  Mich.  622. 

cedent.     The  administrator  upon  his  3  Jud.    Act,   ch.    54,    §  11 ;    Comp. 

mother's  estate  was  the  only  com-  Laws  1915,  §13855. 
j)etent  person  to  enforce  such  claim. 


§  1  Executors  and  Administrators  781 

tance,  maintain  actions  on  the  case  for  wjiste  of  the  real 
estate  of  the  testator  or  intestate,  committed  during  his 
lifetime,*  and  actions  for  trespass  committed  on  the  real 
estate  in  tlie  lifetime  of  such  testator  or  intestate.  The 
executor  or  administrator  also  has  the  right  to  the  pos- 
session of  all  the  real  estate  of  the  deceased,  excepting 
the  homestead,  and  may  lease  the  same  from  year  to  year, 
and  is  entitled  to  the  rents  and  profits  thereof  until  the 
estate  shall  have  been  settled,  or  until  delivered  over  by 
order  of  the  probate  court  to  the  heirs  or  devisees;  *  and 
may  maintain  all  such  suits  and  actions  as  shall  be  neces- 
saiy  and  proper  to  enforce  such  right.^  An  administrator 
may  sue,  either  in  his  individual,  or  in  his  representative 
capacity,  for  money  had  and  received  after  the  death  of 
his  intestate  for  the  use  of  the  estate;  but  to  recover  for 
money  received  in  the  lifetime  of  the  intestate,  he  must 
sue  in  his  representative  capacity  and  allege  that  it  was 
received  to  the  use  of  tlie  intestate. '^  If  there  are  no  debts 
and  the  executor  is  the  sole  devisee  and  legatee,  he  may 
sue  individually.*  If,  before  the  granting  of  letters  testa- 
mentary or  of  administration,  any  person  shall  embezzle 
or  alienate  any  of  the  moneys,  goods,  chattels  or  effects 
of  the  deceased,  the  executor  or  administratoi-  may  bring 
an  action  therefor,  and  recover  double  the  value  of  such 
property  for  the  benefit  of  the  estate.*  Claims  for  dam- 
ages on  account  of  the  breach  of  the  conditions  of  any 
bond,  may  be  prosecuted  by  any  executor,  administrator 
or  guardian,  in  behalf  of  those  he  may  represent,  in  the 

4  See  Waste.  v.   Moulton,   11   Mich.  ;?70;   B.arlago 

5  But  administrator  lias  no  interest  v.   Ry.  Co.,  .")4   Midi.  264;   Moody  v. 
in   the   real   estate   and   no   right    to  Macomher,  l.'')9  Mich.  C;"!?.     But  see 
the  possession    thereof  except   when  Howes  v.  Barney,  199  Mich.  569. 
there    is    insufficient   personal   prop-  ^  Barnum  v.  Stone,  27  Mich.  332. 
erty  to  pay  the  debts  and  expenses  8  Ewers    v.    White's    Estate,    114 
of   administration.      Howes    v.    Bar-  Mich.  266. 

noy,  199  Mich.  569.  9  .fiid.    Act,    ch.    .5:1,    S9;     Comjt. 

6  May  maintain  ejectment.     Kline       Laws  1915,  S  13827. 


782  EXECUTOT^S    AND    ADMINISTRATORS  §  1 

same  manner  as  by  persons  living,  and  of  full  age,  and 
such  claims  may  be  prosecuted  against  the  representa- 
tives of  deceased  persons,  in  the  same  manner  as  other 
claims  against  such  deceased  persons."  An  administra- 
tor may  maintain  an  action  ui)on  a  bond  to  the  deceased, 
''his  heirs  or  assigns,"  though  it  contain  no  formal  words 
giving  him  the  right  to  sue." 

Whore  a  special  administrator  is  appointed,  he  may 
conmience  and  maintain  actions  as  an  administrator  and 
may  be  substituted  in  i)ending  actions  against  the  in- 
testate.^^ On  the  death  of  the  sole  executor  or  adminis- 
trator, or  the  extinguishment  of  his  authority  in  any 
other  manner,  and  the  appointment  of  an  administrator 
with  the  will  annexed,  or  otherwise,  to  administer  the 
goods  and  estate  of  the  deceased  not  already  adminis- 
tered, such  administrator  becomes  his  personal  represen- 
tative with  the  same  powers  as  the  former  executor  or 
administrator;  and  may  prosecute  or  defend  any  action 
commenced  by  or  against  such  former  executor  or  ad- 
ministrator, and  have  execution  upon  any  judgment  re- 
covered in  the  name  of  such  former  executor  or  admin- 
istrator.^^ 

The  declaration,  in  its  commencement,  states  the  char- 
acter in  whicii  plaintiff  sues.  There  is  nothing  peculiar 
in  regard  to  the  pleadings  or  process;  and  the  statutes 
governing  the  time  to  sue  are  stated  in  another  article.^* 
So  executors  and  administrators  are  entitled  to  costs  the 
same  as  other  parties,  and  if  judgment  is  rendered  in 
their  favor  execution  may  1)0  issued  as  in  ordinary  cases. 

lOJnd.   Act,   C'li.    6;;,    §12;    Comp.  Cannot    sup   to    set   aside    fraudn- 

Laws  191.5,  §  14130.  lent    eonvoyance.      I^'nion    Trust   Co. 

11  Rynearson    v.     Fiedenburg,    42  v.   Kirchberg,  174  Mich.   161. 

Mich.  412.  13.Jud.    Act,   ch.   5.3,    §13;    Comp. 

12,Tiid.    Act,    ch.    53,    5)5;    Comp.  Laws  1915,  §  13831. 

Laws  1915,  S  1382.3.  14  See  Limitation  of  Actions. 


§  1  Executors  and  Administkators  783 

Form  of  Oommencement  of  Declaration  by  Administrator 

The  Circuit  Court  for  the  County  of   

(Title  of  cause,  if  suit  not  commenced  by  declaration.) 
County  of  ,  ss. 

A.  B.,  as  administrator  of  all  and  singular  the  goods,  chattels,  and 
credits  which  were  of  O.  K.,  deceased,  at  the  time  of  his  death,  who  died 
intestate,  plaintiff  in  this  suit,  by  J.  K.,  his  attorney,  complains  of  C.  D., 
defendant  herein,  etc. 

Form  of  Commencement  of  Declaration  by  an  Administrator  with  the 

Will  Annexed 

The  Circuit  Court  for  the  County  of   

(Title  of  cause,  if  suit  not  commenced  by  declaration.) 
County  of ,  ss. 

A.  B.,  as  administrator  of  all  and  singular  the  goods,  chattels,  and  credits 
•which  were  of  O.  R.,  deceased,  with  the  last  will  and  testament  of  the 
said  O.  R.  annexed,  plaintiff  in  this  suit,  by  J.  K.,  his  attorney,  complains 
of  C.  D.,  defendant  herein,  etc. 

,  Form   of  Oommencement   of  Declaration  Against  an  Administrator 

The  Circuit  Court  for  the  County  of 

(Title  of  cause,  if  suit  not  commenced  ])y  declaration.) 
County  of   ,  ss. 

A.  B.,  plaintiff  in  this  suit,  by  J.  K.,  his  attorney,  complains  of  C.  D., 
wlio  is  administrator  of  all  and  singidar  the  goods,  chattels,  and  credits 
which  were  of  O.  E.,  deceased,  at  the  time  of  his  death,  who  died  intestate, 
defendant  herein,  etc. 

Form  of  Commencement  of  Declaration  by  an  Executor 

The  Circuit  Court  for  the  County  of   

(Title  of  cause,  if  suit  not  commenced  l)y  declaration.) 
County  of   ,  ss. 

A.  B.,  as  executor  of  the  last  will  and  testament  of  0.  K.,  deceased, 
plaintiff  in  this  suit,  by  J.  K.,  his  attorney,  complains  of  C.  D.,  defendant 
herein,  etc. 

Form  of  Commencement  of  Declaration  by  an  Executor  of  an  Executor 

The  Circuit  Court  for  the  County  of 

(Title  of  cause,  if  suit  not  commenced  l)y  declaration.) 
County  of   ,  ss. 

A.  B.,  as  executor  of  the  last  will  and  testament  of  O.  R.,  deceased,  who 
was  executor  of  the  last  will  and  testament  of  R.  S.,  deceased,  plaint ifl' 
in  this  suit,  by  J.  K.,  liis  attorney,  complains  of  C.  D.,  defendant  herein,  etc. 


784  Executors  and  Administrators  §  2 

§  2.  Set-off. 

Ill  suits  brought  or  prosecuted  by  an  executor  or  ad- 
ministrator, the  defendant  may  set  off  any  chiim  he  may 
have  against  the  deceased,  instead  of  presenting-  it  to  the 
commissioner  ui)on  the  estate,  and  all  mutual  claims  may 
be  set  off  in  such  action;  and  if  final  judgment  be  ren- 
dered in  fa  vol'  of  the  defemhint,  no  execution  is  awarded 
thereon,  but  the  same  is  required  to  be  certified  by  the 
court  rendering  it,  to  the  ])robate  court,  and  such  judg- 
ment will  be  considered  the  true  balance. ^^  AVheu  a  set- 
off has  been  established  in  a  suit  brought  by  executors 
or  administrators,  and  a  balance  found  due  the  defend- 
ant, the  judgment  will  be  against  them  in  their  repre- 
sentative character,  and  will  be  evidence  of  a  debt  estab- 
lished, to  be  paid  in  the  course  of  administration,"  but 
no  execution  will  be  awarded  on  such  judgment,  except 
for  costs  against  tlie  plaintiffs  as  for  their  own  debt. 

§  3.  Actions  against. 

When  commissioners  are  appointed  by  the  probate 
court  for  examining  and  allowing  claims  against  the  es- 
tate of  a  deceased  person,  no  action  can  be  commenced 
against  the  executor  or  administrator  until  the  expira- 
tion of  the  time  limited  by  that  court  for  the  paj-ment  of 
debts,  except  actions  of  ejectment,  or  other  actions  to  re- 
cover the  seizin  or  possession  of  real  estate,  and  actions 
of  replevin.^'  In  no  other  case  not  provided  for  by  the 
statute,  can  an  action  be  brought  against  an  executor  or 

15  J  ml.  Act,  cli.  o5,  §18;  Comp.  Statute  applies  only  to  suits  bc- 
LaAvs  1915,  §  13881.  See  also  Bolt-  gun  during  the  lifetime  of  the  de- 
wood  V.  Miller,  112  Mich.  657.  ceased.       Quinn     v.     McGovern,     97 

But  where  action  commenced  after  Mich.  114. 
expiration    of    time    for    pre.senting  16  ,Tud.    Act,    ch.    15,    §6;    Comp. 

claims   to   commissioners,   defendant  Laws  1915,  §  12473. 
cannot  set  off  a  claim  which  he  had  17Jud.    Act,  ch.    55,    §15;    Comp. 

not    presented    to    them.      Quinn    v.  Laws  1915,  §  13878. 
McGovern,  97  Mich.  114. 


§  4  Executors  and  Administrators  785 

administrator."  After  tlio  probate  court  shall  have  made 
a  decree  for  the  payment  of  the  debts,  and  the  distribu- 
tion of  the  assets,  and  after  the  time  limited  for  such 
payment  has  elapsed,  the  executor  or  administrator  be- 
comes personally  liable  to  the  creditors  for  their  debts,  or 
the  dividend  thereon,  as  for  his  own  debt;  and  also  upon 
his  bond;  and  suit  may  be  commenced  on  such  bond,  upon 
the  application  of  a  creditor  whose  debt  or  dividend  re- 
mains unpaid.^®  If  the  appointment  of  commissioners 
is  omitted,  suit  on  a  claim  may  bo  brou;i?ht  against  the 
executor  or  adnunistrator,^*'  So  a  bill  to  enforce  specific 
performance  of  a  contract  of  the  deceased  to  convey  real 
estate  may  be  Ijrought  against  an  executor  or  adminisr 
trator.^^  Where  the  executor  is  a  residuary  legatee  he 
cannot  be  sued  personally  for  a  debt  due  from  the  testa- 
tor but  only  officially  as  executor.^^ 

'The  statute  fixing  the  time  to  sue  is  stated  in  another 
article.^' 

§  4.  Substitution  as  defendants. 

All  actions  and  suits  pending  against  a  deceased  per- 
son at  the  time  of  his  death,  may,  if  the  cause  of  action 
survive,  be  prosecuted  to  final  judgment,  and  the  execu- 
tor or  administrator  may  be  admitted  to  defend  the  same, 
and  if  judgment  be  rendered  against  the  executor  or  ad- 
ministrator, the  court  rendering  it  will  certify  the  same 
to  the  probate  court,  the  amount  thereof  to  be  paid  in 
the  same  manner  as  other  claims  established  against  the 
estate.^* 

18Jud.   Act,   fh.   56,   SoO;    Coiiii).  22  Lafforty  v.  People's  Sav.  Bank, 

Laws  1915,  §  13912.  76  Mi<'li.  35. 

i9Jud.  Act,  ch.  56,   §12;   Comj).  23  Soe  Limitation  of  Actions. 

Laws  1915,   §13894.  24  .lud.    Act,   ch.   65,    §16;    Conip. 

20Jiul.    Act,   ch.   50,    5)29;    Conip.       Laws  1915,  §14160. 
Laws  1915,  §13911. 

21,Tiul.    Act,    ch.    56,    §6;    Comp. 
Laws  191.5,  §  13888. 
1  Abbott— 5(1 


786  Executors  and  Administrators  §  5 

§  5.  Costs  and  executions. 

When  costs  in  any  case  are  allowed  against  an  execu- 
tor or  administrator,  execution  will  not  be  issued  against 
the  estate  of  the  deceased  in  his  hands  therefor,  but  must 
be  awarded  against  him  as  for  his  own  debt,  and  the 
amount  paid  by  him  will  be  allowed  in  his  administra- 
tion account,  unless  it  shall  appear  that  the  suit  or  pro- 
ceeding in  which  such  costs  are  taxed,  has  been  prose- 
cuted or  resisted  without  just  cause.^^  It  is  provided  by 
statute,  that  no  execution  shall  issue  against  the  body, 
nor  against  the  goods  and  chattels,  lands  and  tenements 
of  any  executor  or  administrator,  unless  in  those  cases 
specifically  provided  by  law.'^^ 

Form  of  Judgment  on  Verdict  for  Plaintiff  Against  Executor  or  Admin- 
istrator in  Assumpsit 

(Title  of  cause.) 

In  this  cause,  the  parties  being  in  court,  by  their  respective  attorneys, 
ready  for  trial,  thereupon  came  a  jury,  to  Tvit  (insert  the  names  of  the 
jurors),  good  and  lawful  men,  who,  being  duly  chosen,  tried  and  sworn  well 
and  truly  to  try  the  issue  between  the  parties,  after  hearing  the  proofs  and 
allegations  of  the  parties,  the  arguments  of  counsel  and  the  charge  of  the 
court,  retired  from  the  bar,  under  the  charge  of  an  officer  duly  sworn  for 
that  purpose,  to  consider  of  their  verdict  to  be  given,  and,  after  being 
absent  for  a  time,  return  into  court  and  say  upon  their  oath  that  the  said 
O.  R.  in  his  lifetime  did  undertake  and  promise  in  manner  and  form  as 
the  said  plaintiff  has  in  his  declaration  in  this  cause  alleged,  and  that  they 
assess  the  damages  of  the  said  ])laintiff  on  occasion  of  the  premises,  over 
and   above    his   costs   and    charges   by    him   about   his   suit    in   this   behalf 

expended,  at  the  sum  of   dollars.     Therefore,  it  is  considered  that 

the  said  plaintiff  do  recover  against  the  said  defendant,  as  executor  (or, 
administrator)  as  aforesaid,  his  damages  aforesaid,  together  with  his  costs 
and  charges  aforesaid,  to  be  taxed,  and  to  be  collected  of  the  goods  and 
chattels  which  were  of  the  said  0.  R.  at  the  time  of  his  death,  in  the  hands 
of  the  said  defendant,  as  executor  (or,  administrator)  as  aforesaid,  to  be 
administered. 

25Jud.   Act,   ch.   62,    §12;    Comp.  26  Jud.    Act,    ch.    23,    §4;    Comp. 

Laws     1915,     §14115;     In    re    Col-      Laws  1915,  §  12819. 
burn's  Estate,  153   Mich.   206,  216. 


§  3  Exemptions  787 

EXEMPTIONS 

§    1.  General  considerations. 

§    2.  Constitntional  provision. 

§    3.  Construction  and  operation  of  statutes  in  general. 

§    4.  Property   which   statute  exempts. 

§    5.  Proceeds  of  exempt  property. 

§    6.  Insurance  money. 

§    7.  Levy  where  part  of  property  exempt. 

§    8.  Duty  of  officer  as  to  property  exemjit  in  specie. 

§    9.  Waiver  of  exemptions. 

§  10.  Transfer  of  exempt  property. 

§  11,  Consent  of  wife. 

Cross-references:  Homestead  (exemption  of);  Commencement  of 
Actions   (exemptions  from  service  of  process  and  arrest) ;  Jury. 

§  1.  General  considerations. 

Property  is  not  exempt  unless  the  exemption  is  ex- 
pressly provided  for  by  statute.  However,  the  exemp- 
tions fixed  by  statute  also  preclude  the  attachment  of  the 
exempt  property  ^  as  well  as  execution  against  it,  and  if 
property  is  exempt  it  cannot  be  garnished  if  the  owner 
objects  thereto.^ 

§  2.  Constitutional  provision. 

The  constitution  of  this  state  provides  that  the  "])er- 
sonal  property  of  every  resident  of  this  state  to  consist 
of  such  property  only  as  shall  be  designated  by  hiw,  shall 
be  exempted  to  the  amount  of  not  less  tlian  five  hundred 
dollars  from  sale  on  execution  or  othei*  final  process  of 
any  court."  ' 

§  3.  Construction  and  operation  of  statutes  in  general. 

The  provisions  of  law  relative  to  the  exemption  of 
property  from  levy  and  sale  under  execution  are  reme- 
dial in  their  natiii'e,  and,  being  designed  to  alleviate  the 

l.lud.    Act,    ph.    26,    §7;     Comp.  3  Const.  lOOS.   Art.   XTV,   §1. 

Laws  191i5,  §  UOPA. 

2  Wilson  v.  Bartholomew,  4r>  Midi. 
41,  and  see  Garnishment. 


788 


Exemptions 


rigors  of  the  common  law,  under  which  a  debtor  might 
be  stripped  of  his  possessions  and  left  utterly  destitute, 
should  be  construed  liberally  and  beneficially  for  the 
debtor,  to  further  the  wise  public  policy  upon  wliich  such 
provisions  are  founded.* 

They  apply  to  contracts  previously  entered  into,^  and 
the  exemption  extends  to  an  assignee  of  exempt  prop- 
erty;^ but  a  debtor  is  not  entitled  to  exemptions  unless 
he  is  a  resident  of  the  state.''^ 


4Alvord  V.  Lent,  23  Mich.  369; 
Stewart  v.  Welton,  32  Mich.  56; 
Fischer  v.  Mclntyre,  66  Mich.  681; 
Rosenthal  v.  Scott,  41  Mich.  632; 
Wilson  V.  Bartholomew,  45  Mich.  41 ; 
Kenyon  v.  Baker,  16  Mich.  373;  Car- 
penter  v.  Herrington,  25  Wend.  (N. 
Y.)  370;  Finlen  v.  Howard,  126  111. 
259;  Gregory  v.  Latchem,  53  Ind. 
449;  Montague  v.  Richardson,  24 
Conn.  338;  Reynolds  v.  Haines,  83 
Iowa  342;  Richardson  v.  Buswcll, 
10  Mete.  (Mass.)  506;  Cobbs  v. 
Coleman,  14  Tex.  594;.  Freeman  v. 
Carpenter,  10  Vt.  433;  Richardson 
V.  Duncan,  2  Heisk.  (Tenn.)  220; 
Shepherd  v.  Merrill,  90  N.  C.  208; 
Mallony  v.  Berry,  16  Kan.  293. 

6  Rockwell  V.  Hubbel  's  Adm  'rs,  2 
Doug.  197. 

A  statute  increasing  exemptions 
is  not  invalid  because  made  ap- 
plicable to  contracts  pieviously  en- 
tered into.  Breitung  v.  Lindaucr,  37 
Mich.   217. 

6  An  assignee  of  exempt  property 
of  judgment  debtors  succeeds  to 
their  rights  to  exemption,  but  he 
lannot  claim  goods  as  exempt  where 
he  fails  to  assert  that  they  were  ex- 
empt but  claims  them  as  his  own. 
McCausey  v.  Hoek,  159  Mich.  570. 

7  Where  one  removes  to  a  foreign 
state  he  loses  the  benefit  of  the  ex- 
emption laws  of  this  state  as  to  any 


property  afterwards  found  within 
the  state  (McHugh  v.  Curtis,  48 
Mich.  262)  ;  but  where  his  family 
occupy  the  old  home  with  his  con- 
sent, and  there  has  been  no  separa- 
tion between  husband  and  wife,  his 
voluntary  absence  does  not  deprive 
liis  family  of  their  rights  in  the 
household  property  nor  terminate  its 
exempt  character.  Freehling  v.  Bres- 
nahan,  61  Mich.  540. 

Temporary  residence  in  another 
state,  caused  by  the  unlawful  seizure 
of  household  goods,  will  not  subject 
the  goods  to  levy  at  the  suit  of  the 
party  guilty  of  the  original  tres- 
pass, on  the  ground  that  the  owner 
is  a  non-resident  of  the  state  and 
not  a  householder  therein.  Erickson 
V.  Drazkowski,  94  Mich.  551. 

The  rule  of  comity  existing  be- 
tween the  states  forbids  the  purchase 
of  a  claim  for  the  express  purpose 
of  assisting  the  original  creditor  in 
evading  the  exemption  laws  of  his 
state  by  having  it  sued  on  in  the 
state  where  the  assignee  resides, 
Drake  v.  Lake  Shore,  etc.,  R.  Co., 
69  Mich.  168. 

The  statutory  exemption  of  a  cer- 
tain portion  of  an  indebtedness  for 
personal  labor  from  garnishment 
cannot  l>e  claimed  by  nonresidents 
of  the  state.  Kelson  v.  Detroit, 
etc.,  R.   Co.,  146  Mich.  563. 


§  4  Exemptions  789 

Exemptions  from  garnishment  belong  to  the  person 
whose  debt  is  garnished  and  not  to  the  debtor,®  and  the 
garnishee  cannot  urge  the  point.® 

The  fact  that  the  debtor  has  other  property  in  another 
county  not  levied  on  from  which  he  might  select  his  ex- 
emption does  not  prevent  him  from  claiming  property 
as  exempt  in  the  county  where  levied  on.^® 

Where  the  facts  are  not  conflicting,  the  question 
whether  certain  articles  of  personal  property  are  exempt 
is  one  of  law  for  the  court." 

§  4.  Property  which  statute  exempts. 

In  this  state,  the  following  property  is  exempt  from 
levy  and  sale  under  execution,  or  upon  any  other  final 
process  of  a  court: 

1.  All  sewing  machines,  not  exceeding  one  for  each 
family,  all  spinning  wheels,  weaving  looms  with  the  ap- 
paratus, and  stoves  put  up  and  kept  for  use  in  any  dwell- 
ing house. 

2.  A  seat,  pew  or  slip,  occupied  by  any  person  or  fam- 
ily in  any  house  or  place  of  public  worship. 

3.  All  cemeteries,  tombs  and  rights  of  burial,  while  in 
use  as  repositories  of  the  dead. 

4.  All  arms  and  accoutrements  required  by  law  to  be 
kept  by  any  person ;  all  wearing  apparel  of  every  person 
or  family.^*^ 

5.  The  library  and  school  books  of  every  individual 
and  family,  not  exceeding  one  hundred  and  fifty  dollars, 
and  all  family  pictures. 

6.  To  each  householder,  ten  sheep,  with  their  fleeces 
and  the  yarn  or  cloth  manufactured  from  tiiem,  two  cows, 
five  swine  and  provisions  and  fuel  for  comfortable  sub- 

8  School  Dist.  No.  4  of  Marathon  11  Fischer  v.  Mclntyre,  66  Mich. 
Tp.  V.  Gage,  39  Mich.  484.                      861. 

9  Seitz  V.  Starks,  136  Mich.  90.  12  Elliott    v.    Whitmoro,    .5    Mich. 

10  Baldwin  v.  Talbot,  43  Mich.  11.      n.-.fi. 


790 


Exemptions 


§4 


sistence  of  such  householder  or  family  for  six  months.^' 

7.  To  each  householder,  all  household  goods,  furniture 
and  utensils,  not  exceeding  in  value  two  hundred  and 
fifty  dollars.^* 

8.  The  tools,  implements,  materials,  stock,  apparatus, 
team,  vehicle,  horses,  harness  or  other  things  to  enable 
any  person  to  carry  on  tlie  profession,  trade,  occupation 
or  business  in  which  he  is  wholly  or  principally  engaged, 
not  exceeding  in  value  two  hundred  and  fiftv  dollars.^* 


13  King  V.  Moore,  10  Mich.  538. 

Yearling  heifer  as  cow,  see  Par- 
sons V.  Kimmel,  206  Mich.  676. 

The  right  to  determine  which  par- 
ticular animals  of  a  larger  numlier 
.shall  be  exempt  rests  with  the  hus- 
band and  is  not  subject  to  the  wife 's 
concurrence  or  consent.  Harley  v. 
Procunier,  115  Mich.  53. 

"Householder"  means  head  who 
has  charge  of  and  provides  for  a 
family. 

The  exemption  as  to  provisions  is 
estimated  with  regard  to  the  size  of 
the  family,  counting  in  adult  chil- 
dren living  with  the  debtor.  Stilson 
V.  Gibbs,  53  Mich.  280. 

Growing  crops  of  corn  and  pota- 
toes are  exempt  under  this  subdivi- 
sion.    King  V.  Moore,  10  Mich.  538. 

14Jud.  Act,  ch.  23,  §43;  Comp. 
Laws  1915,  §12858;  Vanderhorst  v. 
Bacon,  38  Mich.  669;  Erickson  v. 
Drazkowski,   94   Mich.   551. 

A  piano  is  not  exempt  under  this 
subdivision.  Kehl  v.  Dunn,  102 
Mich.  581. 

Boarding  house  keeper  is  entitled 
to  furniture  exem])tion  although  he 
has  abandoned  business.  Vander- 
horst V.  Bacon,  38   Mich.   669. 

Who  is  "householder,"  see  pro- 
ceding  note. 

16  A     business    exemption     cannot 


be  claimed  by  one  whose  business 
is  unlawful.  McCarthy  v.  Paine,  141 
Mich.  571. 

Offering  property  for  sale  does  not 
deprive  the  owner  of  the  right  to 
claim  such  property  to  be  exempt. 
Boyle  V.  Walsh,  105  Mich.  237; 
O  'Donnell  v.  Segar,  25  Mich.  367. 

Where  a  husband  abandons  his 
principal  business,  the  property  ex- 
empt because  necessary  to  enable 
liim  to  prosecute  said  business  loses 
its  exempt  character.  (Betz  v.  Bren- 
ner, 106  Mich.  87;  Miller  v.  Miller, 
97  Mich.  151)  ;  but  the  fact  that  the 
debtor  has  .suspended  his  business 
for  a  month,  and  taken  the  ma- 
chinery claimed  to  be  exempt  to  the 
railroad  to  be  shipped  out  of  the 
.state  for  his  use,  does  not  preclude 
liis  right  to  an  exemption,  so  long 
as  he  remains  a  resident  of  the 
state  (Wood  v.  Bresnahan,  63  Mich. 
614).  So  when  one  who  had  been 
engaged  in  the  hardware  business 
made  an  assignment  of  his  property, 
reserving  certain  tinners '  tools  as 
being  exemjit,  it  was  held  that  he 
was  entitled  to  retain  them  as  ex- 
empt from  sale  on  execution,  not- 
withstanding he  had  done  little  or 
notliing  in  the  business  for  four 
inontlis  afterwards,  in  the  absence 
of    any    showing   that    he   had   gone 


§4 


Exemptions 


791 


To  entitle  a  person  lo  an  exemption  under  this  last  sub- 
division, the  business  in  which  he  is  engaged,  wholly  or 
principally,  must  be  sliown,^^  and,  where  he  is  engaged 
in  two  or  more  occupations  or  lines  of  business,  the  ex- 
emption attaches  only  to  that  in  which  he  is  "})rincipal- 
ly"  engaged,  which  need  not  necessarily  be  the  most 
profitable.^'''  To  be  exempt,  property  need  not  be  abso- 
lutely essential  to  the  carrying  on  of  the  business,  but  it 
must  be  suitable  and  actually  used  or  intended  to  be  used 
therefor."  The  exemption  is  a  privilege  purely  personal 
to  the  judgment  debtor.  It  may  therefore  be  waived  by 
him  and,  if  waived,  cannot  be  asserted  on  behalf  of  any 
of  his  creditors. ^^  The  word  ''team,"  as  used  in  this 
subdivision,  must  be  construed  to  mean  either  one  yoke 
of  oxen,  a  horse  or  a  pair  of  horses,  as  the  case  may  be.*^" 
.Under  this  provision,  machinery  may  be  exempt.^^     So, 


iuto  other  business,  or  relinquished 
his  former  occupation.  Harris  v. 
Haynes,  30  Mich.  140. 

A  married  woman  who  supports 
her  family  or  contributes  to  its  svip- 
port  by  the  use  of  a  team  may  claim 
the  benefit  of  the  law  exempting  a 
team.  McHugh  v.  Curtis,  48  Mich. 
262. 

The  debtor  may  choose  between 
articles  necessary  to  carry  on  his 
business.  For  instance,  although  the 
use  of  a  team  is  absolutely  necessary 
to  conduct  the  business  of  the  debtor 
so  that  he  can  claim  it  as  exempt,  he 
nevertheless  has  a  right  to  select  in- 
stead thereof  other  property  to  the 
value  of  $250  necessary  to  enable 
him  to  carry  on  the  same  business. 
Wyckoff  V.  WylHs,  8  Mich.  48. 

A  liusband  may  abandon  his  ex- 
emption, by  going  and  staying  away, 
without  consent  of  his  wife  to  such 
abandonment,  even  after  goods  have 
been  set  aside  Ijy  the  officer  as  ex- 


empt. Betz  V.  Brenner,  106  Mich.  87. 
Absconding  forfeits   right  to  this 
exemption.     J.  L.  Hudson  Co.  v.  No- 
Name  Hat  Co.,  174  Mich.  109. 

16  Murphy  v.  Mulvcna,  108  Mich. 
347.' 

17  Smalley  v.  Masten,  8  Mich.  529. 
See  also  Kenyon  v.  Baker,  16  Mich. 

■>70 

18  Morrill  v.  Seymour,  3  Mich.  64; 
Kenyon  v.  Baker,  16  Mich.  373 ; 
Smalley  v    Masten,  8  Mich.  529. 

Of  a  stock  of  goods  owned  by  a 
]i;irtnership,  each  partner  is  entitled 
to  the  statutory  exemption.  Skin- 
ner V.  Shannon,  44  Mich.  86;  Waite 
v.  Mathews,  50  Mich.  392;  Chip- 
man  v.  Kellogg,  60  Mich.  438;  Mc- 
Coy v.  Brennan,  61  Mich.  362. 

19  J.  L.  Hudson  Co.  v.  No-Name 
Hat  Co.,   174  Mich.   109. 

20Jud.  Act,  ch.  23,  §43;  Comp. 
Laws  1915,  §  12858. 

21  Wood  V.  Brosnahan,  63  Midi. 
614. 


792  Exemptions  §  4 

also,  a  dentist's  tools,^^  a  carpenter's  lumber,^'  a  farmer's 
seed  wheat,^*  or  his  two-year-old  colt,*^^  masquerade  suits 
made  by  a  tailor  and  kept  by  him  to  let,^^  a  horse  and 
wagon  used  in  the  defendant's  business,^'^  a  team,"  a 
tinner's  tools,^'  merchandise'"  and  a  wagon  made  by  a 
blacksmith  for  sale '^  come  within  the  provision;  but  a 
saloon-kee])er's  pool  tables  are  not  exempt,''^  nor  a  horse 
and  buggy  purchased  for  speculative  purposes  by  one 
whose  business  is  that  of  an  inventor.^' 

But  the  property  exempted  in  this  eighth  subdivision 
is  not  exempt  from  any  execution  issued  upon  a  judg- 
ment rendered  for  the  purchase  money  for  the  same  prop- 
erty, and  any  sale  of  such  property  after  the  commence- 
ment of  a  suit  to  recover  the  purchase  price  thereof,  and 
the  filing-  of  the  notice  hereinafter  specified,  will  be  null 
and  void  as  against  such  execution,  provided  the  plain- 
tiff files,  or  causes  to  be  filed,  with  the  clerk  of  the  city, 
village  or  township  in  which  the  owner  of  the  pro])erty 
resides,  a  notice  stating  the  time  when  the  suit  was  com- 
menced, the  amount  claimed  to  be  due,  that  the  suit  is 
brought  to  recover  the  purchase  money  for  the  property, 
a  description  of  the  property  sought  to  be  reached  and 
the  name  of  the  defendant.'* 

22  Mason  v.  Perrott,  17  Mich.  332.  262;   Miller  v.  Miller,  97  Mich.  151. 

2»  Hutchinson  v.  Eoe,  44  Mich.  389.  29  Harris  v.  Hayues,  30  Mich.  140. 

24Stilson  v.  Gibbs,  46  Mich.  Slo.  30  Eosenthal    v.    Scott,    41    Mich. 

Sec    also    Hutchinson    v.    AVhitmorc,  632;    Worman    v.   Giddey,   30   Mich. 

90  Mich.  25.3.  151. 

25  Tunniugly  v.  Butcher,  106  Mich.  31  Stewart  v.  Welton,  32  Mich.  56. 
35.  But  see  Hogan  v.  Ncunicistcr,  32  Goozen  v.  Phillips,  49  Mich.  7. 
117  Mich.  498,  holding  otherwise  33  Boyle  v.  Walsh,  105  Mich.  237. 
where  colt  unbroken  and  not  shown  34Jud.  Act,  ch.  23,  §44;  Corap. 
to    have    been    intended    for    farm  Laws  1915,  §  12859. 

work.  This  statute  does  not  create  a  lien 

26  Fi.scher  v.  Mclntyre,  66  Mich.  ui>on  the  property.  The  notice  is 
681.  analogous  to  a  lis  pendens  in  other 

27  Emerson  v.  Bacon,  58  Mich.  cases  and  is  designed  to  preserve  the 
526.  status  of  the  property  pending  suit. 

2»McHugh    V.    Curtis,    48    Mich.      Roberts  v.  McGur,  82  Mich.  221. 


§  6  Exemptions  793 

9.  A  sufficient  quantity  of  hay,  grain,  feed  and  roots, 
whether  growing  or  othenvise,  for  properly  keeping  for 
six  months  the  animals  exempt  from  execution. ^^ 

The  shares  held  by  a  householder  member  of  a  build- 
ing and  loan  association  incorporated  under  act  number 
seventeen  of  the  public  acts  of  nineteen  hundred  one  of 
this  state  are  exempt  from  execution  to  the  amount  of 
one  thousand  dollars  par  value,  it  such  member  has  no 
homestead  under  the  general  laws  of  the  si  ate. ^^ 

§  5.  Proceeds  of  exempt  property. 

The  proceeds  of  a  sale  of  exempt  personal  property,  if 
intended  for  reinvestment  in  other  exempt  personal  prop- 
erty to  take  the  place  of  that  sold,  is  exempt." 

§  6.  Insurance  money. 

By  statute,  moneys  payable  on  a  life  insurance  policy 
taken  out  by  a  husband  or  father  for  the  benefit  of  his 
wife  or  children,  cannot  be  reached  by  his  creditors.^* 
So  moneys  paid  by  benefit  societies  are  protected  by 
statute.^® 

So  far  as  the  vendor  is  concerned,  ficient.      Lillihridfre    v.    Walsii,    104 

the  statute  virtually  takes  the  prop-  Mich.  459. 

erty  out  of  the  exempt  class,  and  the  35  Jud.    Act,   ch.   23,    §43;    Comp. 

judgment   need   not    recite   that   the  Laws  1915,   §  12858. 

recovery    is     for    purchase    money.  Applies    only    to    animals    debtor 

Lillibridge  v.  Walsh,  97  Mich.  459.  lias  at  time  of  levy.    King  v.  Moore, 

The  statute  is  not  limited  to  cases  10  Mich.  538. 

where   no   security   has  been   taken.  36  Jud.  Act,  ch.   23,    §45;    Comp 

Eoberts  v.   McGur,  82   Mich.   221.  Laws    1915,    §12860;    Morley   Bros 

That   statute   does   not   extend  to  v.  National  Loan  &  Investment  Co. 

assignee  of  purchase  money  obliga-  120  Mich.  171. 

tion,  see  Shepard  v.  Cross,  33  Mich.  37  CuUen  v.  Harris,  111  Mich.  20 

96.  38  Comp.  Laws  1915,  §  9345.    Stat 

Cows  kept  for  use  on  a  farm  are  iite  does  not  apply  to  assignment  of 

subject  to  sale  for  purchase  money  policy    to    wife    or    children    where 

although  also  exempt  to  the  farmer  payable  to  the  insured,  his  executors, 

under    subdivision    six    as    a   house-  administrators    or     assigns.      Ionia 

holder.    Feenstra  v.  Tanis,  145  Mich.  County    Sav.    Bank    v.    McLean,    84 

409.  Mich.   625. 

Actual  notice  of  suit,  where  stat-  39  Kocor  v.  Commercial  &  Savings 

utory  notice  is  not  filed,  is  not  suf-  Bank   of   St.   Clair,   142   Mich.   479; 


794  Exemptions  §  7 

§  7.  Levy  where  part  of  property  exempt. 

An  examination  of  the  statutory  provisions  relative  to 
the  exenii^tion  of  personal  property  from  execution  will 
disclose  the  distinction  that  some  property  is  exempt  in 
specie,  irrespective  of  value  in  money,  and  other  prop- 
erty is  exempt  only  to  a  fixed  value.  When  a  levy  is 
made  upon  property  of  any  class  or  species  which  is  ex- 
empt by  law  from  execution  to  a  specified  amount  or 
value,  the  officer  levying  the  execution  should  make  an 
inventory  of  so  much  of  such  property  belonging  to  the 
person  against  whom  the  execution  is  issued  as  will  be 
sufficient,  in  the  judgment  of  the  officer,  to  cover  the 
amount  of  sucii  exemptions  and  satisfy  the  execution, 
and  cause  it  to  be  appraised  at  its  cash  value  by  two 
disinterested  freeholders  of  the  township  or  city  w^here 
the  property  may  be,  on  oath  to  be  administered  by  him 
to  such  appraisers.*''  Upon  such  inventory  and  appraisal 
being  completed,  the  defendant  in  the  execution,  or  his 
authorized  agent,  may  select  from  the  inventoiy  an 
amount  of  property  not  exceeding,  according  to  the  ap- 

Hunt   V.  Branch  Circuit   Judge,  141  property    as    shall    be    sufficient    in 

Mich.  423.  his   judgment   to   cover   the   amount 

40  Jud.   Act,   eh.   2.3,    §46;    Conip.  of   such  exemptions  and   satisfy  the 

Laws  1915,  §  12861.  execution.      Subsequent    proceedings 

Heretofore  when  a  levy  was  made  are  the  same  as  heretofore, 

upon  property  of  a  class  or  species  Fees  of  appraisers,  see  Jud.  Act, 

which  was  exempt  by  law  from  exe-  cli.     2?,,     §48;     Comp.    Laws    1915, 

cution    to    a    specified    amount    or  §  12863. 

value,  it  has  been  required  that  the  Inventory    or    appraisal   need   not 

officer    levy    upon    all    the    property  be    made   in   all   the   counties  where 

of  the  defendant  belonging  to  such  the   debtor  has   property   where   the 

class,  and  the  officer  must  inventory  execution    is    issued    and    sought    to 

and  appraise  the  same.    In  case  the  be    enforced    only    in    one    county, 

judgment  debtor  had  a  large  amount  Alvord  v.  Lent,  2.3  Mich.  369. 

of   such   property   in   comparison   to  Appraisal     need    not    be     served, 

the   size   of   the   judgment,  this  was  Jones  v.  Peck,  101  Mich.  389. 

a   hardship  upon  both   plaintiff  and  Amount    found    by    appraisers    is 

defendant.     It  is  now  provided  that  conclusive  on  officer.     Wood  v.  Bres- 

the  officer  shall  levy  upon  and  make  nahan,  63  Mich.  614. 
an    inventory    of    so    much    of    such 


§7 


Exemptions 


795 


praisal,  the  amount  or  value  exempted  by  law  from  ex- 
ecution; but  if  neither  the  defendant  nor  his  agent 
appears  and  makes  such  selection,  it  is  the  duty  of  the 
officer  to  make  it  for  him.*^  The  Judicature  Act  adds  a 
new  provision  fixing  the  method  of  procedure  where  a 
levy  is  made  upon  an  article  of  personal  property  be- 
longing to  an  exempt  class  but  worth  more  according  to 
the  appraisal  than  the  amount  of  the  exemption.*'^ 


41Jud.  Act,  ch.  23,  §47;  Comp. 
Laws  1915,   §  12862. 

The  right  of  selection  is  given  by 
tlie  statute  in  the  first  instance  only 
to  "defendant  in  the  execution  or 
his  authorized  agent."  It  follows 
that  whether  a  fraudulent  vendee  is 
entitled  to  claim  the  exemption 
which  his  fraudulent  debtor  is 
entitled  to  or  not,  no  duty  to  make 
the  selection  is  imposed  on  the  offi- 
cer who  levies  on  a  claim  against 
the  vendor,  and  the  vendee  waives 
the  right  of  selection  where  he  does 
not  demand  it.  Williams  v.  Brown, 
137  Mich.  569. 

Wife  cannot  select  exemption 
where  property  owned  liy  husband. 
Harlcy   v.   Prooinier,   115  Mich.   53. 

Where  the  execution  is  levied  on 
a  stock  of  goods  belonging  to  a 
partnership,  and  each  partner  selects 
the  same  article,  the  officer  may 
make  a  selection  for  them.  Chip- 
man  V.  Kellogg,  60  Mich.  438;  Skin- 
ner v.  Sliannon,  44  Mich.  86. 

Tiie  right  to  select  exempt  prop- 
erty owned  by  a  husband  belongs  to 
iiim  and  not  to  his  wife.  Harlcy 
V.   Procunier,   115   Mich.   53. 

42  Whenever  a  levy  is  made  upon 
any  article,  belonging  to  a  class  or 
species  which  is  exempt  from  exe- 
cution to  a  specified  amount  or 
value,  and  the  value  thereof  as  de- 
termined  by  the  ajipraisal,   shall   be 


in  excess  of  the  amount  of  the  ex- 
emption allowed  therein  to  the  de- 
fendant in  execution,  levy  and  sale 
thereof  may  be  made  under  the  exe- 
cution in  the  ordinary  way,  and 
unless  the  amount  of  the  exemption 
shall  have  been  claimed  or  set  off  in 
other  property  or  waived,  the  officer 
shall  pay  to  the  defendant  in  exe- 
cution, the  amount  of  such  exemp- 
tion, in  money  from  the  proceeds 
of  the  sale,  and  the  balance  of  sucii 
jiroceeds  shall  be  applied  towards 
the  satisfaction  of  the  execution. 
If  at  the  sale  no  bid  shall  be  made 
for  such  property,  in  excess  of  the 
amount  of  the  exemption  allowed 
tiierein  such  property  shall  not  be 
sold,  but  shall  be  returned  to  the 
defendant.  If  the  defendant  in 
execution  shall  before  such  sale,  pay 
to  tlie  officer  the  difference  between 
tlic  appraised  value  of  such  prop- 
erty, and  the  amount  of  the  exemp- 
tion therein,  not  to  exceed  the 
amount  due  on  such  execution  witii 
costs  of  such  levy,  to  be  applied 
upon  the  execution,  such  property 
shall  not  be  sold,  but  shall  be  re- 
lumed to  the  defendant:  Provided, 
that  if  after  such  officer  shall  have 
coiii]>leted  ttie  levy  ujion  such  prop- 
erty, the  (U^fendant  in  execution 
shall  give  to  such  officer  a  sufficient 
bond,  to  be  approved  by  him,  con- 
ditioned   tluit    said    defendant    will 


796  Exemptions  §  7 

If,  in  case  of  a  le\^  upon  such  property,  the  officer  fails 
to  cause  it  to  be  appraised  and  to  allow  the  defendant  or 
his  agent  to  make  a  selection  from  it  of  the  amount  ex- 
empted, or  if,  in  case  of  either  the  defendant  or  his  agent 
neglecting  or  refusing  to  make  the  selection,  the  officer 
fails  to  do  so  for  him,  the  levy  will  be  invalid  to  the  ex- 
tent of  the  exemption." 

The  execution  debtor  is  under  no  duty  to  give  notice 
to  the  officer  that  he  claims  certain  property  as  exempt. 
It  is  the  officer's  duty  to  protect  the  debtor  in  this  re- 
spect without  notice,"  and,  if  he  does  not,  he  is  liable 
to  an  action  at  the  suit  of  the  execution  defendant  for  the 
value  of  the  exempt  property." 

A  debtor  is  entitled  to  his  exemption  although  he  has 
property  in  another  county  Avliich  has  not  been  levied 
upon,**  or  even  in  the  same  county;  and  he  is  under  no 
obligation  to  select  for  his  exemption  property  which  is 
covered  by  a  chattel  mortgage,*'^  and,  where  the  officer 
makes  the  selection,  he  should  not  select  property  which 
is  mortgaged  for  its  full  appraised  value.*^  A  levy  upon 
mortgaged  property  is  in  law  only  a  levy  upon  the  right 
of  redemption,  which  is  not  apportionable,  so  that,  for 
the  protection  of  the  mortgagee,  the  property  must  be 
dealt  with  as  one  lot,  and  not  in  parcels.    Therefore  no 

deliver    said    property    to    such    offi-  43  Town  v.  Elmore,  38  Midi.  ,"?05; 

cer  or  before  the  time  of  sale,  pay  Murphy  v.  Mulvena,  108  Mich.  347. 

to   him    the    difference    between    the  44  Vandorhorst  v.  Bacon,  38  Mich, 

appraised    value    of    such    property,  669. 

and   the   amount   of   his   exemption,  46  Stilson  v.  Gibbs,  53  Mich.  280; 

not    to   exceed   the    amount    due    on  Bayne   v.   Patterson,  40   Mich.   658; 

such    execution    vrith    costs    accrued,  Wyckoff  v.  Wyllis,  8  Mich.  48. 

then   such    officer   may   permit   such  46  Baldwin  v.  Talbot,  43  Mich.  11. 

defendant  to  have  possession  of  such  47  Ganong  v.   Green,  71   Mich.   1 ; 

property    during    the    period    inter-  Baldwin    v.    Talbot,    43    Mich.    11; 

vening  between   the   making   of   the  Bayne  v.  Patterson,  40  Mich.  658. 

\evy  and  the  time  of  sale.    Jud.  Act,  48  Bayne    v.    Patterson,   40    Mich, 

ch.     23,     S50;     Comp.    Laws    1915,  658. 
§  12865. 


§  8  Exemptions'  797 

selection  can  be  made  of  any  specific  portion  of  it  so  as 
to  bind  the  mortgagee." 

The  appraisal  should  be  made,  if  practicable,  in  the 
place  where  the  goods  are  found.  They  must  not  be 
moved  when  the  appraisal  can  be  made  without  re- 
moval.*'" The  appraisers  should  be  disinterested.  This 
requirement  is  designed  for  the  benefit  and  protection 
of  the  execution  debtor.  Accordingly,  the  selection  of 
the  attorney  for  the  plaintiff  in  attachment  proceedings 
against  the  same  defendant  to  act  as  one  of  the  appraisers 
under  the  execution  levy  would  be  unlawful."^  But  if 
an  appraiser,  instead  of  being  disinterested,  is  one  who 
would  be  presumed  rather  to  favor  the  defendant  than 
otherwise,  as,  for  instance,  a  member  of  his  own  family, 
the  defendant  cannot  complain.*'* 

While  the  officer  is  entitled  to  a  reasonable  time  in 
which  to  make  an  inventory  and  appraisal,  yet,  where  it 
is  important  to  the  defendant's  business  that  he  should 
have  the  benefit  of  his  exemptions  without  delay,  the 
officer  is  bound  to  act  promptly  in  allowing  him  to  select 
them  or  in  setting  them  off  to  him.'^^  When  a  levy  is 
made  upon  partnership  property,  if  the  several  partners, 
in  selecting  the  amount  of  their  respective  exemptions, 
cannot  agree,  the  officer  may  intervene  and  make  the  se- 
lections for  them." 

§  8.  Duty  of  officer  as  to  property  exempt  in  specie. 

Wlienever  the  defendant  in  an  execution  has  cows, 
sheep,  swine  or  other  animals  or  articles,  some  of  which 
are  exempt  from  sale  on  execution  and  some  of  whicli  are 
noF  so  exempt,  the  officer  may  take  all  of  such  ani- 
mals or  articles  into  his  possession,  and  the  defendant  or 

49Bayiic    V.    Patterson,    40    Mich.  52Grovor  v.  Buck,  .'^4  Mich.  519. 

658.  53  Handy    v.    Clippert,    50    Mich. 

BOVandorhorst  v.  Bacon,  .".S  Mich.  .;.'>').      And    soo    K'mg   v.   Moore,   10 

669.  Mich.  n.'lS,  ."4.1. 

SlBaync    v.    Patterson,    40    Mich.  54  skinner    v.    Shannon,   44    Mich. 

6.58.  ."6. 


798  Exemptions  §  8 

his  authorized  agent  may,  immediately  on  being  noti- 
fied of  the  levy,  select  so  many  of  them  as  are  exempt 
from  execution ;  but  if  the  defendant  is  absent  or  neglects 
to  make  such  selection  on  being  notified,  it  is  the  duty  of 
the  officer  to  make  it  for  him." 

§  9.  Waiver  of  exemptions. 

The  right  to  exemption  may  be  waived,^^  but  in  some 
cases  it  has  been  held  that  a  husband  cannot  waive  with- 
out the  consent  of  his  wife."  What  constitutes  a  waiver 
is  largely  dependent  upon  the  facts  of  the  particular 
case.'^ 

§  10.  Transfer  of  exempt  property. 

A  debtor  may  do  as  he  pleases  with  any  of  his  exempt 
property  free  from  claims  of  his  creditors,*^  and  where 
he  duly  selects  from  his  stock  in  trade  an  amount  ex- 
empt by  law,  he  can  use  or  dispose  thereof  as  he  sees  fit 
without  subjecting  it  to  liability.^'^  So  garnishment 
process  will  not  reach  exempt  personal  property  assigned 
by  the  principal  debtor.^^  A  conveyance  of  exempt  prop- 
erty is  supeiior  to  the  levy  of  any  attachment  except  one 

55  .Tud.  Act,  ch.  23,  §49;  Comp.  cTiiptioiis  by  a  writing  given  to  the 
Laws  1915,  §12864;  King  v.  Moore,  olticer  and  stating  his  consent  to  a 
10  Mich.  538;  Murphy  v.  Mulvena,  »a]e  of  all  his  property.  Rich  v. 
108  Mich.  .".47.  French,  99  Mich.  27. 

56  J.   L.   Hudson   Co.  v.   No-Name  So     where     one     delivers     exempt 
Hat  Co.,  174  Mich.  109.  i>roperty    to    another    to    be    trans- 
Waiver   signed   by    mistake    is   of  formed   by    the   labor   of   the   latter 

no  effect.    Charpentier  v.  Bresnahan,  into   books   to   be    sold,   he   thereby 

74  Mich.  48.  waives  exemptions  as  to  such  prop- 

57  King  V.  Moore,  10  Mich.  538.  erty,  and  subjects  it  to  a  lien  for 
Consent    of     wife    not    necessary  tlie  labor  bestowed  on  it.     Rogers  v. 

where  exemption  claimed  under  sub-  Raynor,   102  Mich.  473. 

division  8  of  the  statute.     Charpen-  59  McCormick  v.  Kistler,  175  Mich, 

tier    V.    Bresnahan,    62    Mich.    360;  422 ;  Buckley  v.  Wheeler,  52  Mich.  1. 

Wilson  V.   Montague,  57   Mich.   638.  60  Rosenthal    v.    Scott,    41    Mich. 

68  See   Vanderhorst   v.   Bacon,    38  632. 

Mich.  669.  61  Anderson     v.    Odell,    51     Mich. 

He    may    waive    his    right    to    ex-  492. 


Extension  of  Time  799 

for  purchase  price,  in  which  case  it  is  superior  only  where 
the  conveyance  is  prior  in  time;  and  the  purchaser  ob- 
tains a  title  superior  to  the  lien  of  any  subsequent  attach- 
ment levy.^^ 

§  11.  Consent  of  wife. 

It  is  a  principal  object  of  the  statutory  exemptions  to 
secure  their  benefits  to  the  family  of  the  debtor,  and  hence 
it  is  provided  that  any  chattel  mortgage,  bill  of  sale  or 
other  lien  created  by  the  husband  upon  any  of  the  per- 
sonal property,  exempted  from  sale  under  execution  or 
other  final  process,  except  such  as  is  mentioned  in  the  8th 
subdivision  hereinbefore  referred  to,  shall  be  void  un- 
less the  same  be  signed  by  the  wife  also.^^  Where  a  hus- 
band owns  five  cows,  a  mortgage  on  two  of  them,  without 
his  wife's  signature,  is  valid,  since  it  will  be  presumed 
that  he  mortgaged  those  not  exempt.^*  But  the  husband 
may  make  an  absolute  sale  of  any  of  his  personal  prop- 
erty exempt  from  sale  on  execution  without  the  written 
assent  of  his  wife,  and  it  would  seem  that  no  assent  on 
her  part  to  such  sale  is  required.'^^ 

EXHIBITION 

See  Evidence,  §2  (exhibition  lief  ore  jui'y). 

EXHIBITS 

See  Pleadixg;  Bim.  of  Exceptions;  Supreme  Court. 

EXPERTS 

See  Witnesses. 

EXTENSION  OF  TIME 

See  Time. 

62  Buckley  v.  Wheeler,  52  Mioh.  1.  65  Miller  v.  Miller,  97  Mich.  1;11 ; 

63Ju(l.  Act,  eh.  23,  §43;  Comp.  Holinan  v.  Gillette,  24  Mich.  414; 
Laws  ]91;',   8  12S;')8.  P.nrsoiis  v.   Kiinnicl,  173  N.  W.  .'539. 

64Hnrley  v.  Procunier,  115  Mich. 
.53. 


800  EXTRADITTOX 

EXTRADITION 


See  Habeas  Corpvs. 


FACTS 


See  Verdict  and  Findings;  Case  Made;  Error,  Writ  of  (review  of); 
Certiorari. 

FALSE  IMPRISONMENT 

Actions  for  false  imprisonmont  aro  based  on  a  tort, 
the  elements  of  which  are  an  unlawful  arrest  or  deten- 
tion without  cause.*  The  action  is  distin.o'uisliable  from 
an  action  for  malicious  prosecution.^  An  actual  manual 
arrest  is  not  necessary  to  constitute  a  false  imprison- 
ment,' but  there  must  be  some  sort  of  personal  coercion.* 
The  officer  need  not  resort  to  actual  violence.*  The  im- 
prisonment must  be  false,®  but  a  person  who  makes  com- 
plaint is  liable  only  where  the  officer  making  the  arrest 
is  liable.'  Delay  for  an  unreasonable  leno-th  of  time  in 
bi-ino-ing  a  person  arrested  before  the  court  constitutes 
false  imprisonment,*  A  justice  of  the  peace  is  not  liable 
because  of  an  erroneous  judicial  decision.®  The  fact  that 
plaintiff,  when  arraigned,  made  no  objection  to  the  man- 
ner of  his  arrest,  but  pleaded  guilty  to  the  charge,  is  no 
waiver  of  any  illegality  in  the  arrest.*''    Advice  of  coun- 

1  Thomas  v.  Rosecrantz,  193  Mich.  upon  a  person  either  by  force  or 
357;  Schneider  v.  Shepherd,  192  fear.  Moore  v.  Thompson,  92  Mich. 
Mich.    82;     Bates    v.    Kitchel,    166       498,  503. 

Mich.   695;    160   Mich.   402;    Gallon  4  Hill  v.  Taylor,  50  Mich.  549. 

V.    House    of    Good    Shepherd,    158  5  Josselyn  v.  McAllister,  25  Mich. 

Mich.   361,   367;    Larson   v.    Collins,  4.1. 

195  Mich.  492;    Durham   v.   Fceney,  6  .Jolinson  v.  Maxon,  23  Mich.  129. 

195   Mich.   318;    Schneider  v.   Shep-  7  Hill  v.  Taylor,  50  Mich.  549. 

herd,  192  Mich.  82;  Paulus  v.  Grob-  8  Oxford  v.  Berry,  204  Mich.  197. 

ben,  104  Mich.  42.  But  see  Freisenhan  v.  Maines,  137 

2  Haskins  v.  Ralston,  69  Mich.  63,  Mich.  10. 

and  see  Tryon  v.  Pingree,  112  Mich.  9  Gardner    v.     Couch,    137    Mich. 

338.  358;    Brooks   v.   Mangan,   86   Mich. 

SBrushaber     v.     Stegemann,     22  576;   Pardee  v.  Smith,  27  Mich.  33. 

Mich.  266.  10  McCiillough    v.    Greenfield,    133 

It    is   enough    if   restraint    is   put  'Mich.  463. 


Fees  801 

sel,  while  sometimes  a  defense,^^  is  no  defense  to  a  per- 
son not  acting  in  good  faith. ^'^ 

The  dechiration  must  allege  imprisonment  and  the 
wrongfulness  thereof,^'  and  plead  any  special  damages 
suffered.^*  A  count  for  malicious  prosecution  may  be 
added  by  amendment. ^^  Justification  of  the  arrest,  if  re- 
lied on  as  a  defense,  must  be  set  forth  in  a  notice  under 
tlie  general  issue/^  especially  where  the  arrest  is  with- 
out a  warrant.^''^ 


See  Contempt. 


See  Exemptions. 


FALSE  PERSONATION 

FAMILY  PICTURES 

FEES 


The  fees  of  clerks  of  courts  are  expressly  enumerated 
in  chapter  46  of  the  Judicature  Act  and  in  the  rules  of 
court.  The  taxation  of  fees  of  a  sheriff  or  attorney,  upon 
the  settlement  of  an  execution  or  any  suit  or  demand 
(see  Jud.  Act,  ch.  47,  §  31.  Laws  1915,  $  13712)  is  ex- 
pressly required  by  statute.  Chapter  48  of  the  Judica- 
ture Act,  Laws  1915,  §  13718  et  seq.,  provides  in  detail 
as  to  the  fees  of  sheriffs,  witnesses  and  jurors.  Chapter 
49  of  the  Judicature  Act,  Laws  1915,  ^^  13723  et  seq., 
enumerates  the  fees  of  circuit  court  commissioners,  of 
appraisers,  for  publishing  legal  notices,  and  states  cer- 

11  Murphy  v.  Walters,  .34  Mich.'  14  Fuller  v.  Bowker,  11  Mich.  204. 
180;  Perry  v.  Sulier,  92  Mich.  72.  16  People  v.  Wayne  Circuit  Judge, 
But   see   Josselyn   v.  McAllister,   22       27  Mich.  164. 

Mich.   300.  16Tubbs    v.    Haessi«:,    149    Mich. 

12  Burbanks     v.     Lepovsky,     l;!4       185. 

Mich.  .384.  17  White    v.    McQueen,    96    Mich. 

13  See  Brushabcr  v.  Stef,'emann,  249;  Tublis  v.  Haessig,  149  Mich. 
22  Mich.  266,  holding  declaration  to       ISf). 

contain     a     sufficient     averment     of 
malice. 

1  Abbott— i^l 


802  Fees 

tain  rules  applicable  to  fees  generally.  Judges  or  other 
judicial  officers  are  not  entitled  to  fees  (Jud.  Act,  ch.  4, 
§  11,  Laws  1915,  §  12258)  except  where  expressly  given 
by  statute. 

FEMALES 

Soe  Women;  Majiried  Women. 

FI  FA 

See  Executions. 

FILING 

See  Plelvding;  AFFffiAviTs;  Commencement  of  Actions;  Bill  of 
Particulars;  Garnishment;  Replevin;  Ejectment;  Papers;  Motions; 
References;  Briefs;  Bill  of  Exceptions;  Case  Made;  Attachment; 
Mandamus. 

FINDINGS 

See  Verivict  and  Findings;  Jitdgj[ent;  Replevin;  Ejectment;  Bill 
of  Exceptions  ;  Error,  Writ  of. 

FINES 

Chapter  35  of  the  Judicature  Act,  Laws  1915,  ^  13393 
et  seq.,  is  entitled  "Collection  of  Penalties,  Fines  and 
Forfeited  Recognizances."  It  authorizes  an  action  of 
assumpsit  in  the  name  of  the  people  for  the  recovery  of 
fines,  provides  for  the  collection  of  fines  for  violating 
ordinances,  etc.  In  another  chapter  of  the  Judicature 
Act  (ch.  20)  are  certain  provisions  (>^^5-9)  imposing 
fines  for  neglect  to  execute  ])rocess,  neglect  to  attend  as 
a  juror,  and  neglect  of  officer  to  attend  a  jury,  witii  added 
provisions  as  to  notice  of  the  fine,  mode  of  collection,  etc. 
Fines  for  refusal  of  officers  to  obey  a  peremptory  man- 
damus (see  Mandamus)  and  fines  for  refusal  to  grant  a 
writ  of  lia))eas  cori)us  (see  Habeas  (\)rpus)  ai"e  also  pro- 
vided for  bv  statute. 


See  Partnership. 


See  Eeplevin. 


See  Exemptions. 


Forfeitures  803 

FIRMS 

FIXTURES 

FOOD 


FORCIBLE  ENTRY  AND  DETAINER 

Sec  Su.MJiARY  Pkoceedings,  etc. 

FORECLOSURE 

See  Mortgages;   Mandamus. 

FOREIGN  CORPORATIONS 

See  Coki'Okations  ;  Garnishment;  Attachment;  Venue;  Courts; 
Costs;  Commencement  of  Actions;   Quo  W.\rranto;   Mandamus. 

FORFEITURES 

Cliaptor  ."!.")  ol'  the  Judicature  Act,  (onip.  Laws  1915, 
$  13393  et  seq.,  is  entitled  "Collection  of  Penalties,  Fines 
and  Forfeited  Recognizances."  It  provides  in  detail  as 
to  who  may  sue,  pleading,  etc.  It  also  expressly  pro- 
^•ides  that  "if  an  action  of  tres]jass  on  the  case  be  brought 
to  recover  any  goods  or  other  things  forfeited  by  tlie 
provisions  of  any  statute,  the  declaration  may  allege  that 
such  goods  or  other  things  were  forfeited  according  to 
the  i)rovisions  of  such  statute,  referring  to  the  same  as 
presciibed  in  llie  foregoing  section,  wiihout  setting  fortli 
the  s])ecial  nuitter."^  In  anotlu'r  chapter  of  the  Judi- 
catui'e  Act  it  is  provided  that  "whenever,  by  the  pro- 
visions of  law,  any  property,  real  or  personal,  shall  be 
forfeited  to  the  people  of  this  state,  or  to  any  officers,  for 

l.Iiul.    Ai-t,    ell.    .S.'i,    ST;     Comp. 
l.rnvs  191.1,  S  IM.-JOi). 


804  FORFEITUKES 

llifir  use,  an  inronnation  for  tlie  rocovciy  ot*  such  prop- 
erly alleging  the  grounds  of  such  forfeiture,  may  be  hk'd 
by  the  Attorney  General  in  the  circuit  court;  upon  which 
the  like  proceedings  and  judgment  shall  be  had,  if  the 
infornuition  be  to  recover  personal  property,  as  in  per- 
sonal actions,  and  if  to  recover  real  property,  as  in  actions 
of  ejectment."  ^ 

The  venue  of  such  actions,'  tlie  time  to  sue  for,*  the 
right  of  plaintiff  to  costs,^  etc.,  are  stated  elsewhere. 

FORM  OF  ACTION 

See  Actions;   Assumpsit;  Tkovek;  Eeplevin;  etc. 

FORMER  JEOPARDY 

See  Habeas  Cokpus. 

FORMER  RECOVERY 

See  Judgments. 


See  Time. 


See  Executions. 


FRACTIONS 
FRANCHISES 


FRATERNAL  BENEFIT  SOCIETIES 

Sec  Commencement  or  Actions;  Venue;  Costs;   Garnishment. 

FRAUD 

Cross-Eeferenccs:     Commencement  or  Actions;   Abatement;    Trover; 
Attachment;  Limitation  of  Actions. 

In  pleading  fraud,   while   the   facts  upon   which  the 
claim  of  fraud  is  based  must  be  alleged  rather  than  con- 

2Jud.    Act,   eh.    38,    §25;    Comp.  4  Sec  Limitation  of  Actions. 

Laws  1915,  §  13548.  5  See  Costs. 

3  See  Venue. 


Fraud  805 

elusions,  it  is  sufficient  if  the  substance  of  the  transac- 
tion and  the  result  is  alleged.^  Damages  cannot  be  re- 
covered for  fraud  under  the  common  counts  in  assump- 
sit.^ If  fraud  is  relied  on  as  a  defense,  notice  thereof 
must  be  given  under  a  plea  of  the  general  issue.^ 

Form    of    Declaration    for    Fraudulent    Representations    or    Breach    of 

Warranty    (8.   B.    A.   Fonii) 
(Title  of  court  and  cause.) 
The  plaintiff  says: 

1.  That,   on    ,   19...,  the   defendant  offered  to  sell  him  a  certain 

farm  then  owned  by  the  defendant,  described  as   

2.  That,  to  induce  the  plaintiff  to  purchase  said  farm,  the  defendant 
represented  to  the  plaintiff  that  the  said  farm  was  thoroughly  tile  drained 
throughout. 

3.  That   the   plaintiff   was   thereby   induced   to   purchase   said    farm    for 

dollars,  which  was  then  and  there  paid  to  the  defendant,  relying 

on  the  truth  of  the  said  representations. 

4.  That  the  said  representations  were  not  true,  and  a  large  part  of  said 
farm  was  entirely  without  tile  drain. 

5.  That  the  defendant  made  the  said  representations  fraudulently,  know- 
ing them  to  be  false  and  for  the  purpose  of  inducing  the  plaintiff  to 
purchase  the  said  farm. 

6.  That  the  defendant,  in  consideration  of  the  purchase  of  the  said  farm 
by  the  plaintiff,  warranted  that  the  said  land  was  thoroughly  tile  drained 
throughout. 

7.  That  the  said  farm  was  not  as  warranted,  but  a  large  part  of  it  was 
wholly  without  any  tile  drains. 

8.  Wherefore,  etc. 

Form  of  Notice  of  Fraud     (S.   B.   A.  Form) 
The  defendant  will  show: 

1.  That  he  was  induced  to  enter  into  said  contract  by  the  fraud  of  the 
plaintiff,  in  representing  to  the  defendant  that  tiie  said  goods  were  new 
stock  and  had  not  been  on  plaintiff's  shelves  more  than  two  months. 

2.  That  this  i-eprescntation  was  false,  to  the  plaintiff 's  knowledge,  in  that 
said  goods  were  old  stock  which  had  been  on  the  plaintiff's  shelves  from 
to   months,  and  were  shopworn  and  greatly  damaged. 

.3.  That,   within   a  reasonable  time  after  discovering  this   fraud,  and  on 

1  Watson    V.    Wagner,    202    Mich.  2  Barciiy   v.   Carpenter,   181    Mich. 

397.  78,  and  see  Assumpsit. 

See   also   Scofield   v.    Clarke,    179  3  See  Pleading. 

Mich.  681 ;  Ward  v.  Cook,  158  Mich. 
283. 


806  Fkaud 

,    19...,    the   tlcfenclant   repudiated   the   said    sale   and    notified    the 

plaintiff  that  he  would  not  accept  or  pay  for  the  said  goods. 

FRAUDULENT  CONVEYANCES 

See  Executions;  Gaknisiiment. 

FRAUDULENT  DEBTORS 

§  1.  Nature  of  proceedings. 

§  2.  Affidavit. 

§  ."..  Warrant. 

§  4.  Rights  of  defendant  on  being  brouglit  before  officer. 

§  5.  Witnesses  and  jury. 

§  6.  Determination,  eoniinitnicnt  and  discharge. 

§  7.  Appeal   by  defendant. 

§  8.  Rc>covery  on  bond  of  defendant. 

§  1.  Nature  of  proceedings. 

Imprisonment  for  debt,  that  drastic  and  often  unjust- 
ly o])pressive  institution  of  tlie  common  law,  has  been 
abolislied  in  Michigan,  so  that  now  by  the  law  of  this 
state  no  person  can  be  imprisoned  when  the  only  thing 
alleged  against  him  is  that  he  owes  a  debt.  The  provi- 
sion of  the  constitution  of  the  state  is  that  no  person 
sliall  be  imprisoned  for  debt  arising  out  of  or  founded 
u])on  contract,  express  or  implied,  except  in  cases  of 
fraud  or  breach  of  trust  or  of  moneys  collected  by  pub- 
lic officers  or  in  any  professional  employment.^ 

It  is  provided  by  statute  that  no  jierson  shall  be  ar- 
rested or  imprisoned  on  any  civil  process  issuing  out  of 
any  court  of  law  or  on  any  execution  issuing  out  of  a 
court  of  equity  in  any  suit  or  proceeding  instituted  for 
the  recovery  of  any  money  due  upon  any  judgment  or 
decree  founded  upon  contract,  ex])ress  or  implied,  or  for 
the  recovery  of  any  damages  for  the  non-performance  of 
any  contract.^     This  provision  of  the  statute,  however, 

1  Const.  Art.  IT,  sec.  20. 

2  .Tud.    Act,    ch.    44,    §  1 ;     Conip. 
Laws  1915,  §13630. 


§  1  Fraudulent  Debtors  807 

does  not  extend  to  proceedings  as  for  contempts  to  en- 
force civil  remedies,  or  to  actions  for  fines,  penalties  or 
forfeitures  or  on  promises  to  marry  where  fraud  is  al- 
leged or  for  moneys  collected  by  any  public  officer  or  for 
any  misconduct  or  neglect  in  office  or  in  any  professional 
employment.^ 

In  all  cases  where,  by  the  foregoing  provisions  of  the 
statute,  a  defendant  cannot  be  arrested  or  imprisoned, 
it  is  lawful  for  the  plaintilf,  who  has  commenced  a  suit 
or  has  obtained  a  judgment  or  decree  against  him  in  any 
court  of  record  or  justice's  court,  to  apply  to  any  judge 
of  the  court  in  which  the  suit  is  brought,  or  to  any  cir- 
cuit judge  or  circuit  court  commissioner,  or  to  any  jus- 
tice of  the  peace  before  whom  the  suit  is  pending  or  judg- 
ment obtained  or  before  whom  such  proceedings  have 
been  transferred,  for  a  warrant  to  arrest  the  defendant.* 
The  action  is  a  civil  one,  and  not  criminal,  and  the  pur- 
pose is  to  compel  the  payment  of  the  debt.^  The  pro- 
ceeding does  not  lie  against  a  woman.^ 

No  warrant  should  be  issued  for  the  arrest  of  a  defend- 
ant when  there  is  a  valid  subsisting  levy  upon  person- 
alty sufficient  to  satisfy  the  debt.  The  existence  of  sucli 
levy,  however,  does  not  render  the  proceedings  void  and 
therefore  susceptible  of  collateral  attack,  but  it  does 
render  them  so  irregular  as  to  enable  the  defendant  to 
avoid  them  by  a  direct  attack.''' 

The  federal  bankruptcy  law  does  not  sui^ersede  the 
statute  providing  for  the  arrest  of  a  defendant,  so  as  in 
all  cases  to  preclude  resort  to  this  remedy.  One  against 
whom  an  involuntary  petition   iu  ])niikruptc'y  has  l)een 

3,Jiul.    Act,    eh.    44,  §2;     Conip.           6  Jud.    A.t,    rli.    13,    §42;    Comp. 

Laws  1915,  §13631.  Laws  1915,  §12445;  People  v.  Bar- 

4 Jud,  Act,  ch.  44,  §3;  Comp.  tow,  27  Mich.  68;  Carnahan  v.  Car- 
Laws  1915,  §13632.  iiahan,  143   Mich.  390. 

5Duniiiier  v.  Nungcsscr,  107  Mich.  VJolinson  v.  Maxon,  23  Mich.  129. 

481  ;    Wayne  County  v.  Randall,  43 
Mich.  137. 


808  Fraudulent  Debtors  §  1 

filed  or  who  has  filed  a  voluntary  petition  may  be  ar- 
rested under  the  statute  on  a  warrant  based  upon  an  in- 
debtedness from  which  he  would  not  be  released  by  a 
discharge  in  bankruptcy,  but  in  the  case  of  a  debt  of 
which  the  debtor's  discharge  in  bankruptcy  would  be  a 
release,  if  bankruptcy  proceedings  have  been  instituted, 
no  proceedings  should  be  taken  for  the  arrest  of  the  de- 
fondant  under  the  state  statute.  If  the  defendant  has 
]>een  ari'ested  on  a  warrant  issued  under  the  statute,  the 
subsequent  filing  of  a  petition  in  bankruptcy  does  not 
ipso  facto  relieve  him  from  arrest.  He  would,  however, 
be  entitled  to  relief  upon  a  proper  application.  Such  ap- 
plication should  be  made  in  the  first  instance  to  the  state 
court,  as  this  practice  will  be  more  likely  to  avert  a  con- 
flict of  jurisdiction;  but,  if  the  state  court  denies  the  re- 
lief, application  may  then  be  made  to  the  federal  court.' 

§2.  Affidavit. 

The  warrant  can  issue  only  upon  satisfactory  evidence 
adduced  to  the  officer  authorized  to  issue  it  by  the  affi- 
davit of  the  plaintitf  or  some  other  person  or  persons 
that  there  is  a  debt  or  demand  due  to  the  plaintiff  from 
the  defendant,  specifying  the  nature  and  amount  thereof 
as  near  as  may  be,  for  which  the  defendant,  according 
to  the  foregoing  provisions  of  the  statute,  cannot  be  ar- 
rested or  impi-isoned,  and  establishing  one  or  more  of 
the  following  particulars: 

1.  Tliat  the  defendant  is  about  to  remove  any  of  his 
property  out  of  tlie  jui'isdiction  of  the  court  in  which  the 
suit  is  brought,  with  intent  to  defraud  his  creditor  or 
creditors;  or 

2.  That  the  defendant  has  property  or  rights  in  action 
wliicli  he  fraudulently  conceals,  or  that  he  has  rights  in 

8  In  re  Walker,  1  Low.  222;  Hazle-  gers,    2    Biss.    71;     Minon    v.    Van 

ton    V.    Valentine,    1    Low.    270 ;    In  Nostrand,      Holmes,      251 ;      In      re 

re    Seymour,    1    Ben.    .348;     In    re  O'Mara,  4  Biss.  .'506. 
Wliitehouse,  1  Low.  429;  In  re  Wig- 


§  2  Fraudulent  Debtors  809 

action  or  some  interest  in  some  public  or  corporate  stock, 
money  or  evidence  of  debt  wliicli  lie  unjustly  refuses  to 
apply  to  the  payment  of  a  judgment  or  decree  wiiicli  lias 
been  rendered  against  him  belonging  to  the  plaintiff;  or 

3.  That  he  has  assigned,  removed  or  disposed  of,  or  is 
about  to  dispose  of,  any  of  his  property,  with  intent  to 
defraud  his  creditor  or  creditors;  or 

4.  That  he  fraudulently  contracted  the  debt  or  in- 
curred the  obligation  respecting  which  the  suit  was 
brought.^ 

The  property  concerning  which  any  such  charge  is 
made  must  be  such  as  is  not  exempt  from  levy  and  sale 
under  execution. ^° 

The  affidavit  is  the  basis  upon  which  all  the  subse- 
quent proceedings  rest,  and  must  therefore  comply  with 
every  requisite  of  the  statute,  not  only  as  to  the  allega- 
tions relating  to  the  indebtedness,  but  also  as  to  the  facts 
upon  which  it  is  claimed  the  defendant  is  liable  to  arrest 
as  a  fraudulent  debtor.  Where  the  affidavit  states  that 
the  defendant  is  justly  indebted  unto  the  plaintiff  in  a 
specified  sum  upon  two  promissory  notes,  and  that  such 
sum  is  now  due  from  the  defendant  to  the  plaintiff,  the 
statement  as  to  the  amount  due  and  the  character  of  the 
indebtedness  is  sufficient."  But  a  statement  that  the 
amount  of  the  plaintiff's  claim  against  the  defendant  is 
"about"  a  specified  sum,  "as  near  as  deponent  can  fix 
the  same,"  is  insufficient,  for  it  does  not  contain  any 
legal  evidence  of  tlie  existence  in  fact  of  any  debt  what- 
ever.   A  statement  of  the  debt  by  way  of  recital  merely 


SJud.    Act,    eh.    44,    §4;     Comp.  §13;     Comp.    Laws    1915,    §13642. 

Laws  1915,  §  13633.  See  also  Duninior  v.  Nungcsser,  107 

The  removal,   concealment  or   dis-  Mich.  481. 

posal    of   any    property    referred    to  10  Jud.    Act,   ch.   44,    §13;    Comp. 

■will    not    be    deemed    to    apply    to  Laws  1915,  §  13642. 

property     which     is     expressly     ex-  H  Dummcr     v.     Nungesser,      107 

empted  by  law  from  levy  and  sale  Mich.  481. 
under  execution.     Jud.  Act,  ch.  44, 


810  Fraudulent  Debtoks  §  2 

is  not  oiioiii>li.  What  is  required  is  an  atitirmative  allega- 
tion or  averment  that  the  debt  exists.*^  When  the  in- 
del)tedness  for  which  a  warrant  is  sought  is  alleged  to 
be  in  judgment,  the  affidavit  should  set  forth  such  a  judg- 
ment as  will  authorize  the  proceeding,  and  should  give 
the  date  of  the  judgment  and  show  the  form  of  action  in 
wliich  it  was  rendered.  An  affidavit  which  fails  to  show 
whether  the  judgment  was  in  tort  or  on  contract  is  fatal- 
ly defective.^^ 

It  is  only  in  cases  Avhere  fraud  is  charged  that  a  war- 
rant can  be  had."  The  affidavit  must,  therefore,  show 
facts  which  amount  to  a  prima  facie  case  of  fraud.^^ 
Thus,  the  fact  that  a  debtor  has  admitted  that  he  has 
sold  his  stock  of  goods  at  less  than  half  their  value,  and 
refuses  to  pay  more  than  thirty  cents  on  the  dollar,  is  not 
sufficient  to  make  out  a  case  of  fraud.^^  The  affidavit 
should  set  forth  such  facts  and  circumstances  as  will 
authorize  the  officer  who  is  asked  to  issue  the  warrant 
to  find  such  a  state  of  facts  as  will  bring  the  case  within 
the  statute.*''^ 

The  facts  and  circumstances  which  are  relied  upon  to 
make  out  a  case  within  the  statute  must  be  stated  posi- 
tively on  the  affiant's  own  knowledge,  and  not  merely 
on  his  information  and  belief  or  by  way  of  recital."  That 
the  affiant  is  personally  cognizant  of  the  facts  set  forth 
must  appear  with  reasonable  certainty  upon  the  face  of 
the  affidavit,  either  expressly  or  by  a  fair  presumption 
from  the  nature  of  the  facts  and  the  circumstances  dis- 

12  Lee's  Case,  49  Mieh.  629.  Willisou  v.  Desenberg,  41  Mich.  156; 

13  Badger  V.  Keade,  39  Mieh.  77L  Supe    v.    Francis,    49    Mieh.    266; 

14  Dunimer      v.      Nungesser,      107  .Johnson  v.  Maxon,  23  Mich.   129. 
Mich.   481.  18  Stcnsrud  v.  Delamater,  56  Mich. 

ISTeachout's  Case,  15  Mieh.  346.  144;  Proctor  v.  Prout,  17  Mieh.  473; 

16  Stensrud  v.  Delamater,  56  Badger  v.  Reade,  39  Mich.  771 ; 
Mich.  144;  Wm.  Barie  Dry  Goods  Marble  v.  Curran,  63  Mich.  283; 
Co.  V.  Casler,  131  Mieh.  23;  Paulus  Lee's  Case,  49  Mich.  629;  Duinmer 
V.  GrolDben,  104  Mich.  42.  v.  Nungesser,  107  Mich.  481;  Paulus 

17  Proctor  V.  Prout,  17  Mich.  473;  v.  Groffen,  104  Mich.  42. 


§  2  Fraudulent  Debtors  811 

closed.^^  If  the  plaintiff  does  not  know  the  facts,  other 
affidavits  must  be  produced  from  those  who  do  know 
them.  It  is  also  held  that  the  facts  must  be  specific,  and 
not  merely  general,  so  that  the  defendant  may  know  pre- 
cisely what  he  is  called  on  to  controvert.^" 

No  one  can  be  held  under  the  statute  for  any  construc- 
tive fraud,  or  where  he  is  guilty  of  no  personal  delin- 
quency and  the  act  complained  of  is  the  immoral  con- 
duct of  another,  such  as  that  of  a  partner.^^ 

Form  of  Affidavit  to  Obtain  a  Warrant  for  the  Arrest  of  a  Fraudulent 

Debtor 

State  of  Miehioan,  ) 
County    of    ( 

A.  B.,  lieing  duly  sworn,  deposes  and  says  that  he  has  commenced  a  suit, 
as  plaintiff,  against  C.  D.,  as  defendant,  by  summons  (or  as  the  case  may 

be)  issued  out  of  the  circuit  court  for  the  county  of ,  on  the 

day, of    ,  A.  D ,  upon  a  demand  which  the  said  A.  B.  has 

against  the  said  C.  D.,  arising  upon  (here  specify  the  nature  of  tlie  demand), 
which  said  suit  is  still  pending  (or,  that  he  has  obtained  a  judgment  against 

C.  D.,  as  defendant,  in  the  circuit  court  for  the  county  of    ,  on  the 

day  of ,  A.  D ,  upon  a  demand  which  he  had  against 

the  said  defendant  arising  upon  [here  specify  the  nature  of  the  demand]); 
and  that  there  is  due  upon  such  demand  (or,  judgment)   to  the  said  A.  B., 
plaintiff,  from  the  said  C.  D.,  defendant,  the  sum  of  ......  dollars,  as  near 

as  may  be,  for  which  said  demand  the  defendant,  according  to  the  pro- 
visions of  chapter  forty-four  of  the  Judicature  Act  of  nineteen  hundred 
fifteen,  cannot  be  arrested  or  imprisoned. 

And  this  deponent  further  says  that  the  said  defendant  is  abont  to 
remove  his  property  (or,  certain  of  his  property)  out  of  the  jurisdiction  of 
said  court,  with  intent  to  defraud  Iiis  creditors. 

Or, 

And  tliis  deponent  furtlier  says  tliat  tlu'  said  defendant  has  property  or 
rights  in  action,  which  he  fraudulently  conceals  (or,  that  he  has  rights 
in  action  or  interests  in  some  public  or  corporate  stock,  moiu^y,  or  evidence 
of  debt,  which  he  unjustly  refuses  to  apply  to  the  payment  of  deponent's 
said  judgment,  so   olttnined   against  the  said   defendant,  as  aforesaid). 

Or,' 

And   this   de])onent   furtlur   says   that   the   said    defendant   has  assigned, 

19  Proctor  v.  Prout,  17  Mich.  47:5.  21  Watson  v.   Hinchman,  42  Mich. 

20  Badger  v.  Peade,  39  Mich.  771.       27. 


812  Fraudulent  Debtors  §  2 

removed,  or  disposed  (or,  is  about  to  dispose)   of  his  property  (or,  certain 
of  his  property)   with  intent  to  defraud  his  creditors. 

Or, 

And  this  deponent  further  says  that  the  said  defendant  fraudulently 
contracted  the  debt  or  incurred  the  o))ligation  respecting  -which  the  afore- 
said suit  is  brought. 

And  this  deponent  further  says  that  tlie  facts  and  circumstances  which 
establish  the  particulars  aforesaid  are  as  follows:  (Here  state  all  the 
facts  and  circumstances  showing  the  truth  of  the  ground  upon  which 
])laintifF  relies  for  obtaining  a  warrant.) 

A.  B. 

Subscribed,  etc. 

§3.  Warrant. 

No  warrant  can  issue  unless  ''satisfactory  evidence" 
is  adduced  to  the  officer  to  whom  the  application  is  made 
by  affidavit;  ^^  but,  upon  such  proof  being  made  to  his 
satisfaction,  it  is  his  duty  to  issue  a  warrant  under  his 
liand,  in  behalf  of  the  people  of  this  state,  directed  to  the 
sheriff  or  any  constable  of  the  county  within  which  such 
officer  resides,  therein  briefly  setting  forth  the  nature  of 
the  com])laint  and  commanding  the  officer  to  whom  it  is 
directed  to  arrest  the  person  named  in  the  warrant  and 
l)ring  him  before  such  officer  without  delay.  The  war- 
rant must  be  accompanied  by  a  copy  of  all  the  affidavits 
which  were  presented  to  the  officer  and  upon  which  the 
warrant  issued,  which  copies  must  be  certified  by  the 
officer  issuing  the  warrant  and  be  delivered  to  the  defend- 
ant at  tlie  time  of  serving  the  warrant  by  the  officer  serv- 
ing it.^^ 

When  "satisfactory  evidence"  is  adduced,  the  law 
gives  tlie  right  to  the  process  and  makes  it  the  duty  of 
the  officer  to  issue  it.  The  sufficiency  of  the  evidence, 
when  not  wholly  wanting  in  I'egai-d  to  any  material  fact, 
is,  as  to  the  point  of  jurisdiction,  for  the  officer  applied 
to.  While  evidence  by  the  affidavit  of  the  creditor  or  of 
some  other  person  or  persons  is  to  be  adduced  to  support 

22Jud.    Act,    ch.    44,    §4;    Comp.  23  Jud.    Act,    ch.    44,    §.5;    Comp. 

Laws  ]91.'j,  §  1.^6:53.  I^aws  1915,  §  13634. 


§  3  Fraudulent  Debtors  813 

each  of  the  statutory  requisites  to  endow  the  officer  with 
jurisdiction,  the  proof,  or  extent  of  the  effect  or  conclu- 
siveness of  the  evidence,  is  to  be  such  as  to  satisfy  the 
officer.  His  jurisdiction  does  not  depend  upon  the  weight 
of  the  evidence  in  the  abstract  or  on  the  conflicting  opin- 
ions of  different  courts  or  magistrates  respecting  the 
cogency  or  conchisiveness  of  the  evidence.  The  juris- 
diction to  issue  the  warrant  vests  if  the  evidence  is  *' sat- 
isfactory" to  liim.^^ 

It  is  the  duty  of  the  officer  to  whom  the  warrant  is  de- 
livered for  service  to  execute  it  by  arresting  the  defend- 
ant and  bringing  him  before  the  officer  who  issued  the 
warrant,  or,  in  case  of  the  hitter's  absence  or  inability, 
before  some  other  officer  having  jurisdiction  in  the  case, 
and  to  keep  the  defendant  in  custody  until  he  has  been 
duly  discharged  or  committed  as  will  be  hereafter  ex- 
plained.^^ A  copy  of  all  the  affidavits  upon  which  the 
warrant  issued,  certified  by  the  officer  who  issued  the  war- 
rant, must  be  delivered  to  the  defendant  at  the  time  the 
warrant  is  served  by  the  officer  who  serves  it.^*^ 

Form  of  Warrant  for  Arrest  of  Fraudulent  Debtor 

State  of  Michigan,   ) 
County  of    j'^*'' 

To  the  Sheriff  of  the  County  of ,  Greeting: 

Whereas  it  satisfactorily  appears  to  me  (name  an«l  oflicial  designation), 
by  the  affidavit  of  A.  B.,  a  copy  of  which  is  hereto  annexed,  that  the  said 
A.  B.  has  commenced  a  suit,  as  plaintiff,  against  C.  D.,  as  defendant,  by 
summons   (or  as  the  ease  may  be)   issued  out  of  the  circuit  court  for  the 

county  of ,  on  the day  of ,  A.  D ,  upon  demand 

which  the  said  A.  B.  has  against  the  said  C.  D.,  arising  upon  (here  specify 
the  nature  of  the  demand,  or,  that  the  said  A.  B.  has  ol)tained  a  judgment 

against  C.  D.,  as  defendant,  in  the  circuit  court  for  the  county  of   , 

on  the   day  of   ,  A.  D ),  for  which  said  demand  the 

defendant,  according  to  tlie  provisions  of  chapter  forty-four  of  the  .Tudica- 

24.Tohnson    v.    Maxon,    2?>    Mich.  26  .Tud.    Act,    ch.    44,    S.l;    Comp. 

127;  Supe  v.  Francis,  49  Mich.  266.       Laws  1915,  §  L'^6:U. 

25  .Tud.    Act,    ch.    44,    §6;    Comp. 
Laws  19L1,  SL^6.'^.'1. 


814  Fraudulent  Debtors  |  3 

ture  Act  of  uinetoeii  huiuliod  lit'toon,  cannot  l)e  aivested  and  imprisoned, 
and  that  the  said  defendant  is  about  to  remove  his  property  (or  any  of 
his  property)  out  of  the  jurisdiction  of  said  court,  with  intent  to  defraud 
his  creditors  (or  as  the  ease  may  be,  as  stated  in  the  affidavit). 

You   are  therefore  conimande*!,  in   tlio   name  of  tlie  people  of  the   state 

of  Michigan,  to  arrest  the  said  C.  D.  and  bring  him  before  me,  at , 

without  dfday,  to  answer  to  the  said  complaint,  and  tiiat  such  further 
proceedings  may  be  had  thereupon  as  are  authorized  by  law. 

Given  under  my  hand  at ,  this day  of ,  A.  D 

Circuit  Judge   (or  as 
the  case  may  be). 

§  4.  Rights  of  defendant  on  being  brought  before  officer. 

ir  the  (lefoiubuit  desires  to  question  the  jurisdiction  of 
the  officer  who  issued  the  warrant  or  of  the  officer  before 
whom  he  is  brought  after  being  arrested,  he  may  do  so 
by  motion  to  dismiss  the  proceedings,  whether  the  want 
of  jurisdiction  appears  upon  the  face  of  the  papers,  as 
wliere  the  facts  and  circumstances  alleged  in  the  affidavit 
for  the  wai'rant  are  not  sufficient  to  l)ring  the  case  witliin 
the  statute,  oi-  can  be  made  to  appear  only  by  the  bring- 
ini>-  in  of  some  extrinsic  fact  or  circumstance.^'  If  the 
defendant  does  not  wish  to  raise  a  preliminary  objection 
to  tlie  jurisdiction,  he  may,  on  l)eing  brought  before  the 
officer,  contro\-ert  any  of  tlie  facts  and  circumstances  on 
Avhich  the  wai-rant  issued,  and  may,  at  his  option,  verify 
his  allegations  by  his  own  affidavit.  In  case  of  his  so 
verifying-  them,  the  plaintiff  may  examine  him  on  oath 
touching  any  fact  or  circumstance  material  to  the  in- 
quiry. The  answers  of  the  defendant  on  such  examina- 
tion ai'e  required  to  be  reduced  to  writing  and  subscribed 
by  him.  The  officer  conducting  the  inquiry  must  also 
receive  such  other  proofs  as  the  parties  may  offer,  either 
at  the  time  of  their  first  appearance  or  at  such  other  time 
as  the  hearing  may  be  adjoni-ned  to.^® 

The  whole  issue  is  ui)on  the  allegations  of  the  plain- 

27  Clark  V.  Mikesell,  81  Mich.  4.1. 
28.Jud.    Act,    ch.    44,    §7;    Comp. 
Laws  1915,  §  13636. 


§  5  Fraudulent  Debtors  815 

tiff,  and  the  result  depends  upon  them  and  their  truth, 
which  is  held  admitted  if  not  denied.^®  The  mere  denial, 
however,  by  the  defendant,  of  the  truth  of  the  allega- 
tions in  the  affidavits  upon  which  the  warrant  issued,  will 
not  rendei-  it  necessary  for  the  plaintiff  to  inti'oduce  evi- 
dence in  supjjort  of  tliem.  Unless  the  defendant  not  only 
denies  their  truth  or  the  truth  of  some  essential  one  of 
them,  and  supports  his  denial  by  evidence  in  the  shape 
of  affidavits  or  otherwise,  the  issue  must  be  decided  in 
favor  of  the  plaintiff.^"  If  the  defendant  introduces  evi- 
dence, the  weight  of  the  evidence  is  for  the  officer,  wdiose 
finding  or  conclusion  thereon  w^ill  not  be  reviewed.^^ 

In  case  of  an  adjournment,  the  officer  before  whom  tlie 
hearing  is  pending  may  take  a  recognizance  w^itli  surety 
from  the  defendant  for  his  appearance  at  the  adjourned 
meeting,  conditioned  that  the  defendant  will  not  mean- 
while secrete,  destroy,  dispose  of  or  in  any  manner  make 
way  with  or  put  out  of  his  possession  any  of  his  property 
not  exempt  from  sale  on  execution.  If  the  defendant  does 
not  enter  into  such  a  recognizance,  he  must  be  committed 
to  the  county  jail  and  there  remain  until  the  time  to 
wdiich  the  hearing  is  adjourned  or  until  he  gives  the  re- 
cognizance.^^ 

§  5.  Witnesses  and  jury. 

The  officer  conducting  the  inquiry  has  the  same  au- 
thority to  issue  subpoenas  for  witnesses,  enforce  obedi- 
ence to  such  subpoenas  and  punish  witnesses  refusing  to 
testify  as  he  has  in  cases  of  other  proceedings  before 
liim.^' 

The  defendant  will  be  entitled  to  a  jury  of  six  jurors, 
if  he  demand  one,  to  try  the  issue  joined  in  the  matters 

29  Badger  V.  Reade,  39  Mich.  771.  32  Jud.    Aet,    eh.    44,    §7;    Corap. 

30  Spencer    v.    Hiltoii,    10    Wend.       Laws  1915,  §13636. 

(N.  Y.)   6in.  33.Tiid.    Aet,    cli.    44,    §S;    Conip. 

SlWillison  v.  DosenberK,  41  Mioli.       Laws  1915,   S  13637. 
].16. 


816  FiiAUDULEXT  Debtous  §  5 

nlk'^tMl  a.i'aiiist  liiiii  in  tlie  aflidavit  or  aflidavits  exliib- 
ited  to  or  before  the  officer  conducting-  the  inquiry.  The 
jury  is  to  be  selected  and  summoned  in  the  same  man- 
ner, as  near  as  may  be,  as  in  the  trial  of  criminal  cases 
before  justices  of  the  peace,  and  the  officer  has  the  same 
power  in  relation  to  the  selection,  summoning  and  swear- 
ing such  jury  and  conducting  the  jury  trial,  as  near  as 
may  be,  as  is  given  to  justices  of  the  peace  in  the  trial 
of  criminal  cases  before  them.^* 

§  6.  Determination,  commitment  and  discharge. 

If  the  officer  is  satisfied  that  the  allegations  of  the 
plaintiff"  are  substantiated,  and  that  the  defendant  has 
done,  or  is  about  to  do,  any  of  the  acts  specified  upon 
which  a  warrant  Avas  authorized  to  be  issued,  it  is  his 
duty,  by  a  commitment  under  his  hand,  to  direct  that  the 
defendant  be  committed  to  the  jail  of  the  county  in  which 
the  hearing  is  had,  there  to  be  detained  until  he  is  dis- 
charged according  to  law,  and  the  defendant  will  be  com- 
mitted and  detained  accordingly.^^ 

But  a  commitment  of  the  defendant  will  not  be  granted, 
if  he  either  (1)  pays  the  debt  or  demand  claimed,  with 
the  costs  of  the  suit  and  of  the  proceedings  against  him, 
or  (2)  gives  security  to  the  satisfaction  of  the  officer  be- 
fore whom  the  hearing  is  had  that  the  debt  or  demand 
of  the  plaintiff,  with  the  costs  of  the  suit  and  the  pro- 
ceeding aforesaid,  shall  be  paid  within  ninety  days,  if 
a  judgment  has  been  recovered  thereon,  or  witiiin  ninety 
days  after  judgment  has  been  obtained,  in  case  judgment 
has  not  been  rendered  thereon,  or  (3)  enters  into  a  bond 
to  the  plaintiff  in  a  penalty  not  less  than  twice  the 
amount  of  the  debt  or  demand  claimed,  with  such  surety 
or  sureties  as  shall  be  approved  by  the  officer,  condi- 
tioned that  the  defendant  will,  within  thirty  days  there- 

84Jurl.    Act,    ch.    44,    §8;    Conip.  36  Jud.    Act,    ch.    44,    §9;    Conip. 

Laws  1915,  §  13637.  Laws  1915,  §  13638. 


§  7  Fraudulent  Debtors  817 

after,  make  a  general  assignment  of  all  his  property  for 
the  benefit  of  his  creditors  in  accordance  with  the  provi- 
sions of  chapter  forty-two  of  the  Judicature  Act  or  file 
a  petition  under  the  federal  bankruptcy  law,  and  dili- 
gently prosecute  it  until  he  obtains  a  discharge,  and  that 
he  will  not,  before  making  such  assignment  or  filing  his 
petition  for  adjudication,  in  an}^  way  dispose  of  any 
money,  property  or  rights  in  action  or  interest  in  any 
public  or  corporate  stock  or  evidence  of  debt  or  any- 
thing valuable  whatsoever  which  he  possessed  at  the  time 
of  his  arrest,  not  exempt  from  execution.'® 

The  statute  requires  that  a  defendant  who  has  been 
committed  shall  remain  in  custody  in  the  same  manner 
as  other  prisoners  until  a  final  judgment  has  been  ren- 
dered in  his  favor  in  the  suit  prosecuted  by  the  creditor 
at  whose  instance  he  has  been  committed,  or  until  he  has 
mxide  a  general  assignment  for  the  benefit  of  his  creditors 
in  accordance  with  chapter  forty-two  of  the  Judicature 
Act  or  has  been  adjudicated  a  bankrupt  in  accordance 
with  the  federal  bankruptcy  law;  but  he  may  be  dis- 
charged by  the  officer  committing  him  or  by  any  other 
person  authorized  to  discharge  the  duties  of  such  officer, 
on  paying  the  debt  or  demand  claimed  or  giving  security 
for  the  payment  thereof  as  above  mentioned  or  on  ex- 
ecuting the  bond  mentioned.^''' 

§  7.  Appeal  by  defendant. 

A  defendant  who  has  been  committed  or  ordered  to  be 
committed  may,  at  any  time  within  twenty-four  hours 
jifter  the  making  of  the  order  of  commitment,  appeal 
therefrom  to  the  circuit  court  of  the  county,  upon  enter- 
ing into  a  bond  to  the  plaintiff  in  a  sum  not  less  than 
double  the  amount  of  the  plaintiff's  demand  and  not  less 
than  five  hundred  dollars,  with  one  or  more  sufficient 

36Jud.    Act,   ch.   44,    §10;    Com]).  37.J,k1.    Act,   eli.   44,   §11;    Comp. 

Laws  1915,   §  13639.  Laws  1915,  §  13640. 

1  Abbott— 52 


818  FnAUDiLBXT  Debtoks  §  7 

sureties,  to  be  approved  by  the  officer,  conditioned  to  ap- 
pear before  that  court  on  the  first  day  of  the  next  term 
thereof,  prosecute  his  appeal  to  effect  and  abide  the  or- 
der and  judgment  of  that  court,  and  with  like  conditions 
as  to  the  disposition  of  his  property  and  eflfects  pending 
the  appeal  as  before  mentioned. 

The  officer  from  whose  order  or  judgment  the  appeal 
is  taken  must  thereupon  discharge  the  defendant  from 
custody  or  order  his  discharge,  and  is  required  to  make 
a  special  return  of  the  proceedings  had  before  him  and 
cause  the  affidavit  or  affidavits  and  the  warrant  and  re- 
turn, together  with  the  bond,  to  be  filed  in  the  circuit 
court  on  or  before  the  first  day  of  the  next  term  thereof.^* 

The  circuit  court  will  have  full  jurisdiction  of  the  case 
the  same  as  was  had  by  the  officer  before  whom  the  pro- 
ceedings were  commenced,  and  may  conduct  it  to  a  final 
hearing  and  determination  in  like  manner,  with  the  same 
right  on  the  part  of  the  defendant  to  demand  and  have  a 
trial  by  jury.^^ 

§  8.  Recovery  on  bond  of  defendant. 

Whenever  a  bond,  conditioned  that  the  defendant  will 
make  a  general  assignment  or  file  a  petition  in  bank- 
ruptcy and  prosecute  it  to  effect  and  not  dispose  of  his 
property  as  already  mentioned,  becomes  forfeited  by  the 
non-performance  of  its  condition,  the  plaintiff  is  entitled 
to  recover  on  the  bond  tlic  amount  due  him  on  the  judg- 
ment in  the  original  suit." 

FRAUDULENT  SALES  AND  CONVEYANCES 

Sec  Sales. 

aSJiid.  Act,  ch.  44,  §11;  Comp.  40  Jud.   Act,   ch.   44,    §14;    Comp. 

Laws  1915,  §13640.  Laws  19ir>,   §1.'?643;   Supe  v.  Fran- 
SB  Jud.   Act,  ch.  44,   §11;  Comp.      cis,  49  Mich.  266. 

Laws  1915,  §  13640. 


See  Exemptions. 


See  Exemptions. 


Garnishment  819 

FUEL 

FURNITURE 

GARNISHMENT 

I.  In  General 

§    1.  Origin,  nature  and  development. 
55    2.  How  viewed  by  courts. 
§    3.  In  what  cases  writ  may  issue. 
§    4.  Who  subject  to  writ. 

S    ~>.  State,  counties,  municipalities  and  private  corporations. 

§    6.  Joinder  of  two  or  more. 

S    7.  What  debts  or  property  may  be  reached. 

§    8.  Contingent  claims. 

§    9.  'Indebtedness  created  after  issue  of  writ. 

§  10.  As  dependent   on   principal   defendant   having   right   of  action 

against  garnishee. 

§11.  Exempt  property. 

§12.  Indebtedness  on  note. 

§  13.  Waiver  by  garnishee. 

II.  Affidavit 

§  14.  Necessity  for  and  sufficiency  of. 

§  15.  Amendment. 

§  16.  Making  and  filing. 

III.  Writ 

§  17.  Form  and  contents. 
§  18.  Service  of  writ. 

§  19.  On  domestic  corporations. 

§  20.  On   foreign  corporations. 

§21.  On  municipal  corporations. 

§  22.  Where  garnishee  resides  out  of  county. 

IV.  Disclosure,   iNTERROfiATORiEs   and  Oral  Examination 

§  2.'>.  Disclosure  by  garnishee — Time  for  filing. 

§  24.  Contents  and  effect. 

§25.  Amendments  or  supplementary  disclosure. 

§  26.  Special  interrogatories. 

§  27.  Oral  examination  of  garnishee. 

§28.  Order  to  appear  for  examination. 

^  29.  Examination  to  determine  ownership  of  negotiable  instruments. 
§  30.  Disposition  and  effect  of  testimony  and  answers  of  garnishee. 
§  31.  When  default  of  garnishee  may  be  entered  and  judgment  rendered. 
§32.  Protective  force  of  judgment. 


820  Garnishment  §  1 

§33.  Default  judgment  against   garnishee  after  default  of  principal 

defendant. 

V.  Statutory   Issue 

§  34.  How  formed. 

§  35.  Demand  for  trial  of  issue. 

§  36.  Trial  of  issue. 

§  37.  Evidence. 

VI.  Claims  of  TiiiRn  Persons 
§  38.  Procedure  in  general. 
§  39.  Position  of  claimant  when  served. 
§40.  Issue,  trial  and  judgment. 
§  41.  Imjmrtance  of  summoning  in   claimants. 

VII.  Discontinuance  or   Dismissal 
§  42.  In  general. 
§  43.  On  giving  bond. 

VIII.  Delivery  op  Property  to  Commissioner  or  Receiver 

§  44.  Written  promises  for  payment  of  money  or  delivery  of  property. 
§  45.  Delivery  of  personal  property  subject  to  lien. 
§  46.  Effect  of  refusal  to  obey  order. 

IX.  Procedure  Where  Principal  Defendant  a  Non-Resident  op  Foreign 

Corporation 
§  47.  Statutory  provisions. 

S  48.  When  and  what  judgment  may  )>o  entorod  aj^ainst  non-resident  prin- 
cipal  defendant. 

X.  Judgment,  Execution  and  Co.sts 

§  49.  Judgment  when  garnishee  is  found  liable  to  principal  defendant. 
§  50.  Judgment  against  garnishee  in  case  of  no  trial  of  statutory  issue. 
§  51.  Judgment    and    execution    when    garnishee    is    liable    for    goods    and 

chattels  of  defendant. 
§  52.  Judgment  when   property   has   been   conveyed    to   garnishee   in   fraud 

of  creditors. 
§  53.  Effect  of  judgment  against  garnishee. 

§  54.  Setting  aside  or  removal  to  supi-eme  court  of  judgments. 
§  55.  Costs. 
§  56.  Executions. 

Cross  Fief erencm:      Exemptions      (property      exenijit) ;       Prohibition, 
Writ  of. 

I.  In  General 

§  1.  Origin,  nature  and  development. 

Althou*>li  tho  ])ioceodinf>'  in  I'arnishniont  is  frequently 
spoken  of  by  tlie  courts  as  entirely  statutory  and  iu  der- 


§  2  Garnishment  821 

ogation  of  the  common  law,  it  is  not  an  innovation  of 
modern  times.  On  the  contrary,  the  proceeding  may  very 
clearly  be  identified  with  the  custom  of  foreign  attach- 
ment of  London,  which  had  a  very  ancient  existence. 
Whether  this  custom  of  foreign  attachment  in  turn  is  cor- 
rectly to  be  ascribed  for  its  origin  to  the  Roman  law  need 
not  be  discussed  in  this  place.  Suffice  it  to  say  that  the 
proceeding  in  garnishment,  as  known  to  modern  jurispru- 
dence, is  a  development  of  and  from  the  custom  of  foreign 
attachment  of  London,  from  which  as  a  source  also  may 
be  traced  the  modern  proceeding  by  writ  of  attachment. 
Indeed,  although  attachment  and  garnishment,  as  they 
exist  today,  are  widely  different  in  some  of  their  impor- 
tant characteristics,  yet  they  are  identical  in  their  funda- 
mental principle  as  well  as  in  their  common  origin,  for 
they  both  operate  upon  the  defendant's  property,  with  the 
object  of  subjecting  it  to  the  eventual  satisfaction  of  a 
liability,  in  advance  of  any  judicial  determination  of  the 
existence  of  such  liability.^ 

§  2.  How  viewed  by  courts. 

Before  entering  into  the  consideration  of  the  procedure 
in  garnishment,  and  for  the  better  understanding  of  the 
same,  it  should  be  said  that  the  remedy  is  purely  statutory 
and  artificial,  and  the  mode  of  conducting  it  is  regulated 
and  defined  by  statute.^    The  statute,  providing  as  it  does 

1  See  Foster  v.  Kent  Circuit  Wayne  Circuit  Judge,  73  Mich.  155. 
Judge,  116  Mich.  285;  Newland  v.  Garnishment  as  an  adversary  pro- 
Wayne  Circuit  Judge,  85  Mich.  151;  rcoding,  see  Barlow  v.  Lincoln-Wil- 
Karp  V.  Citizen's  Nat.  Bank,  76  lianis  Twist  Drill  Co.,  186  Mich.  46. 
Mich.  679;  Cook  v.  Field,  3  Ala.  Effect  of  hankrui.tcy  proceedings 
53;  Welsh  v,  Blackwell,  14  N.  J.  on  judgment  in  garnishment,  see 
L.  .344 ;  Lyman  V.  Wood,  42  Vt.  113 ;  Wilson  v.  Van  Buren  County 
Cahoon  v.  Levy,  5  Cal.  294;  Mills  Farmers'  Mut.  Fire  Ins.  Co.,  184 
V.  Findlay,  14  Ga.  230;  Haber  v.  Mich.  530. 
Nassitts,  12  Fla.  589.  2  People  v.  Casa  Circuit  Judge,  39 

Garnishment     proceedings    always  Mich.    407;     Smith    v.    Holland,    81 

depends  on  anotlier  suit  as  a  basis.  Mich.  471. 
Milwaukee  Bridge  &  Iron  Works  v. 


822 


Garnishment 


§2 


a  harsh  and  peculiar  remedy,  in  deroo-ation  of  the  com- 
mon law,  is  subject  to  strict  construction.^  There  is  no 
authority  for  any  action  or  prohibition  of  action  outside 
of  the  statute.*  No  presumption  can  be  raised  in  sup- 
port of  the  plaintiff's  claim,  nor  is  the  proceeding  one 
supported  by  such  equitable  considerations  as  appeal  to 
the  court  to  give  it  effect  in  doubtful  cases.* 

§  3.  In  what  cases  writ  may  issue. 

The  statute  provides  that,  in  all  personal  actions  aris- 
ing upon  contract,^  brought  in  the  several  circuit  courts 
or  in  municipal  courts  of  civil  jurisdiction,  whether  com- 
menced by  declaration,  writ  of  capias,  summons  or  at- 
tachment, and  in  all  cases  where  there  remains  any  sum 
unpaid  upon  any  judgment  or  decree  rendered  in  any 
of  such  courts  or  upon  any  transcript  of  judgment  filed 
in  any  such  court,  if  the  plaintiff,'^  his  agent  or  attorney 


3W.  H.  Warner  Coal  Co.  v.  Nel- 
son, 204  Mich.  :U7;  Maynards  v. 
Cornwell,  a  Mich.  309;  Blake  v. 
Hi*bbard,  45  Mich.  1;  Iron  Cliffs 
Co.  V.  Lahais,  52  Mich.  394;  Wei- 
mester  v.  Manville,  44  Mich.  408; 
Ettelsohn  v.  Fireman's  Fuud  Ins. 
Co.,  64  Mich.  331;  Crisp  v.  Ft. 
Wayne,  etc.,  B.  Co.,  98  Mich.  64S; 
Heritage  v.  Armstrong,  101  Mich. 
85;  Foster  v.  Kent  Circuit  Judge, 
116  Mich.  285;  King  v.  Harrigan, 
145  Mich.  436;  Ford  v.  Detroit  Dry 
Dock  Co.,  50  Mich.  358;  Hansel- 
man  V.  Kegel,  60  Mich.  540. 

4W.  H.  Warner  Coal  Co.  v.  Nel- 
son, 204  Mich.  317;  Hanselman  v. 
Kigel,  60  Mich.  540;  Siovers  v. 
Woodburn  Sarven  Wheel  Co.,  43 
Mich.  275;  Ford  v.  Detroit  Dry 
Dock  Co.,  50  Mich.  358;  Kennedy 
V.  McLellan,  76  Mich.  598;  Mil- 
waukee Bridge  &  Iron  Works  v. 
Brevoort,  7.".  Mich.   155. 


5  Farwcll  v.  Chambers,  62  Mich. 
:116;  Folkerts  v.  Standish,  55  Mich. 
463. 

6  A  foieign  judgment  is  regarded 
as  a  contract  for  the  purposes  of 
this  statute.  Union  Nat.  Bank  v. 
Muskegon  Circuit  Judge,  117  Mich. 
678;  Wattles  v.  Wayne  Circuit 
.Judge,   117   Mich.   662. 

Tliat  service  of  process  on  the 
principal  defendant  was  made  out- 
side the  state  is  no  ground  for 
quashing  the  garnishment  proceed- 
ings. Nachtegall  v.  Reilley,  165 
Mich.  347. 

7  The  word  "]»laintiff,"  means 
tlie  moving  party  or  suitor  in  the 
garnishment  proceeding.  The  rem- 
edy is  given  to  the  person  who  re- 
covered judgment  or  decree,  whether 
ho  ]»e  plaintiff  or  defendant.  Esler 
V.  Kent  Circuit  Judge,  108  Mich. 
.543. 

Nonresident    may     sue     out    writ 


§  3  Garnishment  823 

shall  file  with  the  clerk  at  the  time  of  or  after  the  coiii- 
mencement  of  suit,  or  at  any  time  after  the  rendition  of 
judgment  or  decree  or  the  filing  of  a  transcript  of  judg- 
ment, an  affidavit  stating  that  he  has  good  reason  to  be- 
lieve, and  does  believe,  that  any  person  (naming  liim) 
has  property,  monej^,  goods,  chattels,  credits  or  effects  in 
his  hands  or  under  liis  custody  or  control  belonging  to 
the  defendant  or  to  any  or  either  of  the  defendants,  or 
that  such  person  is  indebted "  to  the  defendants  or  to 
any  or  either  ^  of  the  defendants,  whether  such  indebted- 
ness is  due  or  not,^°  and  that  the  principal  defendant  is 
justly  indebted  to  the  plaintiff  on  such  contract,  judg- 
ment, decree  or  transcript  in  a  given  amount,  over  and 
above  all  legal  set-offs,  and  that  the  plaintiff  or  affiant  is 
justly  apprehensive  of  the  loss  of  the  same  unless  a  writ 
of  garnishment  issue  to  such  person,  a  writ  of  garnish- 
"ment  shall  be  issued,  sealed  and  tested  in  the  same  man- 
ner as  writs  of  summons,  directed  to  the  sheriff,  reciting 
the  commencement  of  the  suit  or  the  rendition  of  judg- 
ment or  decree  against  the  principal  defendant  or  any  or 
either  of  the  defendants  or  the  filing  of  a  transcript  of 
judgment  and  the  filing  of  the  affidavit,  and  connnand- 
ing  the  sheriff  to  summon  such  person  to  appear  before 
the  court,  on  or  before  a  day  to  be  named  therein,  whicli 

although    botli    parties    are   iionresi-  liokliug    that    plaintiff    can    garnish 

dents.     Newland   v.   Wayne    Circuit  money  in  the  hands  of  a  third  per- 

Jndge,   85  Mich.   151.  son    belonging   to   one   of   two   joint. 

An  assignee  of  a  claim  may  gar-  dofeiidants     to     satisfy     his     claim 

nishee    the    assignor    although    the  against   both    defendants;    and    fol- 

assignment    was    made    to    him    for  lowing   Meigs    v.    Weller,    90    Mich, 

that    purpose.      Barlow   v.    Lincoln-  G29.      But    an    indcbtedjiess    to    the 

AVilliams  Drill  Co.,  186  Mich.  46.  defendant  and  another  is  not  avail- 

8  A  debt  is  none  the  less  subject  able.  Robbina  v.  Vandcrmeiden,  182 
to  garnishment  because  it  is  secured  Mich.  674;  Kennedy  v.  McLoUan, 
by  lien  or  otherwise  or  because  it  76  Mich.  598;  Markham  v.  Gehan, 
has  assumed  the  form  of  a  judg-  42  Mich.  74;  Nachtegall  v.  R<'illey, 
ment.       Keister     v.     Donovan,     17.'}  165  Mich.  .■!47,  ;?52. 

Mich.  328.  10  Thorj.  v.  Preston,  42  Mich.  511. 

9  Hoof    V.    Blake,    187    Mich.    38, 


824  Garnishment  §  3 

day  must  not  be  less  than  fourteen  days  from  the  date 
of  issuin^i;  the  writ,  to  make  disclosure  in  writing  under 
his  oath,  to  be  filed  with  the  clerk  of  the  court,  touching 
his  liability  as  garnishee  of  the  principal  defendant  or 
any  or  either  of  the  defendants,  as  charged  in  the  affi- 
davit and  thenceforth  to  pay  no  money  and  deliver  no 
property  to  the  principal  defendant  or  any  or  either  of 
the  defendants,  and  of  such  writ  to  make  due  return. ^^ 
It  has  never  been  the  practice  in  this  state  to  give  the 
principal  defendant  notice  of  the  steps  taken  in  the 
garnishment  proceeding.*'^ 

§  4.  Who  subject  to  writ. 

As  a  general  proposition,  irrespective  of  the  ulterior 
question  of  liability,  all  persons  are  subject  to  garnish- 
ment.** By  the  terms  of  the  present  statute,  all  corpora- 
tions of  whatever  nature,  the  state  and  eveiy  county 
therein  may  be  proceeded  against  as  garnishees.**  The 
statute,**  however,  declares  that  no  person  shall  be  ad- 
judged a  garnishee  in  either  of  the  following  cases: 

1.  By  reason  of  any  money  or  thing  received  or  col- 
lected by  him  as  sherilf  or  other  officer  by  force  of  an 

11  Jud.    Act,    ch.    28,    §  1 ;    Comp.  signment    was   made    for   that    pur- 
Laws  1915,  §  13122.     As  to  clerical  pose.      Barlow    v.    Lincoln-Williams 
defects  in  writ,  sec  Millard  v.  Len-  Twist  Drill  Co.,  186  Mich.  46. 
awce  Circuit  Judge,  107  Mich.  134;  14  Jud.   Act,   ch.    28,    §46;    Comp. 
Lyon  V.  Baldwin,  194  Mich.  118.  Laws  1915,  §  13167,  as  amended  by 

The   judgment    against   the    prin-  Pub.  Acts  1919,  No.  233. 

cipal  defendant  may  be  entered  nunc  Formerly,  a  municipal  corporation 

pro   tunc   on   motion   without   notice  was  not  subject. 

to  garnishees  where  the  garnishment  The  fact  that  a  foreign  corpora- 
proceedings  is  based  on  the  judg-  tion  is  exempt  from  process  of  gar- 
ment. Taber  v.  Wayne  Circuit  nishment  under  the  laws  of  its  home 
Judge,  156  Mich.  652.  state   will   not  exempt  it  from   such 

12  Ketcham  v.  Kent  Circuit  Judge,  process  when  doing  business  in  this 
115   Mich.  60.  state.      First   Nat.    Bank    v.    Burch, 

13  Drake,  Attachm.  sec.  468.  80  Mich.  242. 

The  assignor  of  the  claim  sued  on  15  Jud.   Act,  ch.   28,   §  37 ;    Comp. 

may   be  garnished  although  the  as-       Laws   1915,  §  13158. 


§  4  Garnishment  825 

execution  or  other  legal  process  in  favor  of  the  prin- 
cipal defendant. 

2.  By  reason  of  any  money  in  his  hands  as  a  public 
officer  for  which  he  is  accountable,  merely  as  such  officer, 
to  the  principal  defendant. ^^ 

3.  Nothing  in  the  statute  contained  shall  be  applicable 
to  any  indebtedness  of  a  garnishee  to  the  principal  de- 
fendant for  the  personal  labor  of  sucli  defendant  or  his 
family,  unless  such  indebtedness  exceed  the  amount  al- 
lowed him  as  exempt  under  section  five  of  chapter  seven- 
ty-six of  the  Judicature  Act,  and,  in  case  of  such  excess, 
only  to  the  amount  of  such  excess. 

A  receiver  is  not  a  public  officer  within  the  meaning  of 
the  statute  just  alluded  to,^"''  but,  for  other  reasons,  a 
receiver  cannot  be  garnished  without  the  leave  of  the 
court  which  appointed  him."  The  matter  of  granting 
such  leave  is  within  the  discretion  of  tlie  court,  and  an 
order  by  which  leave  has  been  granted  may  be  set  aside 
if  the  court  afterwards  believes  it  to  have  been  improvi- 
dently  granted.^*  So,  also,  the  clerk  of  a  court  cannot  be 
summoned  as  a  garnishee,^®  nor  can  the  administrator 
or  executor  of  the  estate  of  a  deceased  pergon.^^ 

A  resident  of  another  county  may  be  garnished  where 
the  affidavit  states  the  non-residence,  provided  the  action 
against  tlie  principal  defendant  is  properly  brought.^'^ 

16  Applies     to     county     treasurer  of  Iron  Hall,  105  Mich.  283. 
holding  installment  of  saloon  license  19  Citizens'  Commercial  &  Savings 
fee.       Bay     City     Brewing     Co.     v.  Bank    v.    Bay    Circuit    Judge,    110 
McDonnell,  106  Mich.  172.     Applied  Midi.   G:V.',;    Cohnen  v.   Sweenie,   10') 
to    register    in    chancery.      Voorhees  Mich.  G-l.T. 

V.  Sessions,  34  Mich.  99.  20  Voorhees   v.   Sessions,   'M    Mi<-h. 

17  Cohnen   v.   Sweenie,    105   Mich.      99. 

643.  21Wliite    v.    Ledyard,    48    Mich. 

18  People  V.  Brooks,  40  Mich.  333 ;  204;  Hudson  v.  Saginaw  Circuit 
Sievers  v.   Woodburn   Sarven  Wheel       .ludge,  114  Mich.  11(5. 

Co.,   43    Mich.   275;    ButhM-   v.   Wen-  22  Nichol     v.     Nevers.     190     Midi, 

ddl,  57  Midi.  02;    Rickman  v.  Rick-       20;;. 
man,  180  Mich.  224;  Cohen  v.  Order 


826  Garnishment  §  5 

§  5.  State,  counties,  municipalities  and  private  cor- 
porations. 

All  corporations  of  whatsoever  nature,  the  state  and 
every  county  tlierein,  may  be  served  and  proceeded 
against  as  garnishees  in  the  same  manner  and  with  like 
effect  as  individuals  under  tlie  provisions  of  the  statute 
relative  to  gai'nishment  and  tlie  rules  of  law  relative  to 
proceedino's  against  corporations.  But  before  garnish- 
ment proceedings  can  be  commenced  against  a  municipal 
corporation,  the  state  or  any  county  therein,  the  plain- 
tiff must  liave  obtained  a  judgment  against  the  principal 
defendant  in  a  coui't  of  competent  jurisdiction.^^ 

The  fact  that  a  foreign  corporation  is  exempt  from 
process  of  garnishment  under  the  laws  of  its  home  state 
will  not  exempt  it  from  such  process  when  doing  busi- 
ness in  this  state.^*  When  a  foreign  coiporation  comes 
within  this  state  and  seeks  to  carry  on  its  business,  it 
must  do  so  in  compliance  with  the  laws  of  this  state.  A 
corporation  created  by  a  state  is  a  mere  creation  of  local 
law.  Even  the  recognition  of  its  existence  by  other 
states  and  the  enforcement  of  its  contracts  made  therein 
depend  purely  upon  tlie  comity  of  those  states, — a  comity 
which  is  never  extended  where  the  existence  of  the  cor- 
poration or  the  exercise  of  its  powers  is  prejudicial  to 
their  interests  or  repugnant  to  their  policy.  Corpora- 
tions of  one  state  have  no  right  to  exercise  their  fran- 
chises in  another  state  except  upon  the  assent  of  such 

23Ju(l.   Act,  eh.   28,   §46;    Comp.  American  Ins.  Co.  v.  Chippewa  Cir- 

Laws  1915,  §  1?,167,  as  amended  by  cult  Jiulg^e,  105  Mich.  566. 

Pub.  Acts   1919,  No.   233.  Garnishee  process  should  be  served 

Prior  to  Act  No.   266,  Pub.   Acts  on  a  corporation  such  as  a  bonding 

1889,  there  was  no  provision  in  the  company    in    the    manner    provided 

statutes  for  the  service  of  any  writ  for  service  of  process  in  general  on 

of  garnishment  upon  a  foreign  cor-  such    company.      Drueke-Lynch    Co. 

poration,    except    as    to    particular  v.  Michigan  Bonding  &  Surety  Co., 

kinds  of  foreign  corporations.     Mil-  204  Mich.   180. 

■waukee    Bridge    &    Iron    Works    v.  24  First   Nat.   Bank   v.   Burch,   80 

Brevoort,    73    Mich.    155;    German-  Mich.  242. 


§  6  Garnishment  827 

other  state  and  upon  sueli  terms  as  may  be  imposed  by 
the  state  Avhere  the  business  is  to  be  done.  It  is  upon 
such  considerations  that  the  power  of  the  legishiturc  to 
subject  foreign  corporations  to  garnishment  process,  and 
to  prescribe  such  mode  of  service  as  it  sees  lit,  is  based. ^* 

§  6.  Joinder  of  two  or  more. 

Two  or  more  persons,  severally  liable,  may  be  gar- 
nished in  the  same  action,  and  their  disclosures  and  all 
other  proceedings  will  be  several,  and  judgment  may  be 
rendered  for  such  sum  as  the  court  shall  order,  for  or 
against  each  severally,  and  execution  may  issue  accord- 
ingly.^^ Under  this  statute,  several  garnishees  may  be 
joined  in  one  affidavit  and  one  writ,  notw^ithstanding 
they  are  severally  indebted  to  the  principal  defendant 
or  severally  in  possession  or  control  of  property  belong- 
ing to  him;  ^"^  but  both  the  affidavit  and  writ  should  show 
that  the  persons  are  proceeded  against  severally  and  not 
jointly.  However,  one  proceeded  against  as  severally 
liable  to  the  principal  defendant  cannot  be  held  liable 
where  his  liability  is  joint.^®  But  if  two  or  more  are 
proceeded  against  as  jointly  liable  to  the  principal  de- 
fendant, they  cannot  be  held  liable  as  garnishees  unless 
in  fact  their  liability  is  joint.  Of  course  if  the  garnishees 
reside  in  different  counties,  there  must  be  separate  writs. 
Two  insurance  companies  issuing  policies  together  under 
a  conmion  name,  may  l^e  garnished  under  such  name  by 
creditors  of  a  policyholder  for  the  amount  due  under 
his  policy,  and  a  single  judgment  taken,  although  by  the 
terms  of  the  policy  the  liability  of  the  companies  is  sev- 
eral for  their  jn'oportionate  share  of  the  loss.'^' 

26  First    Nat.   Bank   v.   Burch,   80  28  Lyon  v.  Ballentine,  6;i  Mii-h.  97. 
Mieh.   242.  29  Ferry      v.      Cincinnati      Under- 

26Jucl.   Act,   ch.   28,    §33;    Conip.       writers,   111   Mich.  261. 
Laws  1915,  §  13154. 

27  State  Sav.  Bank  v.  Wayne  Cir- 
cuit Jiulgo,  9.3  Mich.  300. 


828  Garnishment  §  7 

§  7.  What  debts  or  property  may  be  reached. 

From  the  time  of  the  service  of  the  writ  of  garnish- 
ment upon  the  garnishee,  he  will  be  liable  to  the  plain- 
tiff (1)  to  the  amount  of  property,  money,  goods,  chattels 
and  effects  under  his  control,  belonging  to  the  principal 
defendant,  or  (2)  of  any  debts  due  or  to  become  due  from 
the  garnishee  to  the  principal  defendant,  or  (3)  of  any 
judgment  or  decree  in  favor  of  the  latter  against  the 
former,  and  (4)  for  all  property,  personal  and  real, 
money,  goods,  evidences  of  debt  or  effects  of  the  prin- 
cipal defendant  which  the  garnishee  defendant  holds  by 
conveyance,  transfer  or  title  that  is  void  as  to  the  cred- 
itors of  the  principal  defendant,  and  for  the  value  of  all 
property,  personal  and  real,  money,  goods,  chattels,  evi- 
dences of  debt  or  effects  of  the  principal  defendant,  which 
the  garnishee  defendant  received  or  held  by  a  convey- 
ance, transfer  or  title  that  was  void  as  to  creditors  of  the 
principal  defendant.^" 

§  8.  Contingent  claims. 

The  statute  provides  that  the  garnishee  defendant  shall 
''also  be  liable  on  any  contingent  right  or  claim  against 
him  in  favor  of  the  principal  defendant."  ^^     This  pro- 

30  Jiid.    Act,    ch.    28,    §2;    Conip.  know    funds    belonged    to    principal 

Laws  1915,  §  13123.  defendant).     See  Eice  v.  Third  Nat. 

This    statute    is    not    uneonstitu-  Bank,  97  Mich.  414. 
tional,  as  permitting  a  court  of  law  Shares  of  stock  in  corporation  are 

in    garnishment    proceedings    to    try  subject.     Old   Second  Nat.   Bank  v. 

the   validity   of   a   debtor's   convey-  Williams,   112   Mich.  564. 
ances.     Webber  v.  Hayes,  117  Mich.  Claim    under    insurance    policy    is 

256.  not     subject     where     company     has 

Deposits    in    a   Ijank    are    subject.  option   to   replace   property.      Tliorp 

Mclntyre  v.  Farmers  &  Merchants'  v.  Preston,  42  Mich.  511;   Martz  v. 

Bank,     115     Mich.     255     (mingling  Detroit  Fire  &  Marine  Ins.  Co.,  28 

funds    of    husband    with    those    of  Mich.   201. 

wife  in  a  bank  with  understanding  Trust  property  cannot  be  reached, 

that  entire  fund  shall  be  treated  as  Peninsular  Sav.  Bank  v.  Union  Trust 

his)  ;    Sykes   v.   City   Savings  Bank,  Co.,  127  Mich.  355. 
115  Mich.  321;  Ferry  v.  Home  Sav.  31  ,Tud.    Act,    ch.    28,    §2;    Comp. 

Bank,    114    Mich.    321     (deposit    in  Laws   1915,   §  13123. 
name    of   third    person   where    bank 


§  9  Garnishment  829 

vision  probably  refers  to  the  contingent  liability  of  an 
indorser  or  guarantor  or  the  like,  and  does  not  cover 
moneys  which  may  or  may  not  become  due  under  a  con- 
tract for  services.  Thus,  the  balance  payable  on  a  con- 
tract for  services,  where  not  completed  and  the  balance 
not  due,  cannot  be  reached.'^  It  follows  that  where  com- 
pletion of  a  contract  is  a  condition  ijrecedent  to  payment, 
the  payor  is  not  garnishable  on  his  debt  before  the  con- 
tract is  completed. '^  So  it  has  been  held  that  install- 
ments on  a  building  contract  not  due  cannot  be  reached,'* 
nor  can  rent  payable  in  the  future,'^  although  the  mere 
fact  that  the  claim  is  not  due  does  not  prevent  its  gar- 
nishment. The  only  claims  which  can  be  reached  are 
those  which  are  already  fixed  in  amount  or  capable  of 
being  fixed,  and  not  dependent  for  their  validity  or 
amount  on  anything  to  be  done  or  earned  in  the  future, 
or  the  continued  liability  for  which  may  be  changed  by 
events.'* 

§  9.  Indebtedness  created  after  issue  of  writ. 

The  garnishee  will  not  be  liable  for  any  indebtedness 
to  the  principal  defendant  created  after  the  issue  of  the 
writ  of  garnishment,  but  only  for  such  as  existed  both 
then  and  at  the  time  of  the  service  upon  him  of  the  writ.'' 
The  question  of  a  garnishee's  liability  as  such  upon  any 
particular  indebtedness  depends  upon  whether  the  in- 

32  Siiiiinons  Hardware  Co.  v.  Detroit  Post  &  Tribune  Co.  v. 
Baker,  140  Mich.  12.3;  Kiely  v.  Ber-  Re'iUj,  46  Mich.  459;  Bethel  v. 
trand,  67  Mich.  332.  Judge  of   Superior  Court,  57   Mich. 

33  Kiely  v.  Bertrand,  67  Micli.  332.  379;  Hartz  v.  Detroit,  etc.,  Ins.  Co., 
See  also  Webber  v.  Bolte,  51  Mich.  28  Mich.  201;  Wattles  v.  Wayne 
113.  Circuit  Judge,  117  Mich.  662. 

34  Hopson  V.  Dinan,  48  Mich.  612.  If  the  garnishee  has  paid  the  debt 

35  Thorp  V.  Preston,  42  Mich.  511.  before    the    service    of    the    writ,   it 

36  Thorp  V.  Preston,  42  Mich.  511.  cannot    be    reached.      Patek   v.    Chi- 

37  Hopson  V.  Dinan,  48  Mich.  612;  cago  &  N.  W.  R.  Co.,  147  Mich.  377; 
Hitchcock  V.  Miller,  48  Mich.  603;  Hamilton  v.  Kogers,  67  Mich.  135. 
Cogswell    V.    Mitts,    90    Mich.    353; 


830  Garnishment  §  9 

debtedness  was  garnishable  at  the  time  of  the  institution 
of  the  proceedings,  and  not  at  all  upon  whether  it  has 
become  so  at  a  subsequent  time."  So,  if  the  garnishee's 
liability  is  sought  to  be  founded  u])on  the  possession  by 
him  of  the  personal  property  of  the  defendant,  it  must 
be  confined  to  such  personal  property  as  was  in  the  pos- 
session of  the  garnishee  at  the  time  of  the  service  of  the 
writ,  and  cannot  be  extended  to  property  of  the  defend- 
ant which  thereafter  came  into  the  ]Jossession  of  the  gar- 
nishee;^® and  this  is  true  whether  it  be  claimed  that  the 
property  is  held  by  conveyance,  traUvSfer  or  title  void  as 
to  the  creditors  of  the  principal  defendant  or  not.*"  Of 
course,  where  the  liability  of  the  garnishee  is  sought  to 
be  based  upon  the  value  of  property  which  the  garnishee 
received  or  held  by  conveyance  void  as  to  the  creditors 
of  the  defendant  and  afterwards  disposed  of,  it  is  un- 
necessary that  the  property  should  be  in  the  possession 
of  the  garnishee  at  the  time  of  the  service  of  the  Avrit.*^ 

§  10.  As  dependent  on  principal  defendant  having 

right  of  action  against  garnishee. 

As  a  general  rule,  a  garnishee  cannot  be  held  upon 
any  liability  to  the  jnincipal  defendant  which  the  latter 
could  not  enforce  against  the  former  in  an  action  at  law.*^ 
Thus,  an  indebtedness  which  the  principal  defendant  had 

38  Martz  V.  Detroit  Fire  &  Marine  An  unaiecptetl  order  on  a  debtor 
Ins.  Co.,  28  Mich.  201 ;  Bethel  v.  does  not  create  any  liability  whicli 
Logan,  57  Mich.  .'579;  Old  Second  is  subject.  Stone  v.  Dowling,  119 
Nat.  Bank  v.  Williams,  112  Mich.  Midi.  470;  Tabor  v.  Van  Vranken, 
564 ;  Stone  v.  Dowling,  119  Mich.  476.  ;;9  Mich.  79;?. 

39  Drake,  Attachin.  sees.  45;!,  482.  A    recovery    for    libel    cannot    be 

40  Fearcy  v.  Cummings,  41  Mich.  readied  until  judgment  is  entered 
.■576;    Bethel  v.   Linn,  63  Mich.  464.  on     the     verdict.      Detroit    Post    & 

41  Heineman  v.  Schloss,  8.3  Mich.  Tribune  Co.  v.  Reilly,  46  Mich.  459. 
153.  A  buyer  of  eattle  cannot  be  gar- 

42  Bay  City  Brewing  Co.  v.  nished  as  a  debtor  of  the  seller  be- 
McDonell,  106  Mich.  172;  Farwell  fore  delivery,  where  no  payment 
V.  Chambers,  62  Mich.  316;  Clay  has  ])een  made  or  credit  given  and 
Lumber  Co.  v.  Hart's  Branch  Coal  something  passed  by  way  of  earn- 
Co.,  174   Mich.  613.  est.     Case  v.  Dewey,  55  Mich.  116. 


§  10  Garnishment  831 

duly  assigned  before  the  institution  of  the  garnishment 
proceeding-  would  not  sustain  any  liability  against  the 
ganiishee  in  such  proceeding."  So,  where  the  garnishee 
and  the  principal  defendant  were  co-partners,  and,  in 
order  to  determine  their  relative  rights,  an  accounting 
is  necessary,  any  claim  which  the  principal  defendant 
may  eventually  be  shown  to  possess  against  the  gar- 
nishee cannot  be  made  the  subject  of  garnishment,  at 
least  in  advance  of  such  accounting.**  There  are,  how- 
ever, some  exceptions  to  the  mle,  and  one  of  them  em- 
braces those  cases  where  the  principal  defendant  has 
made  a  fraudulent  conveyance  of  his  property;  in  which, 
although  the  conveyance  be  perfectly  valid  as  between 
the  parties  to  it,  and,  therefore,  no  action  can  be  main- 
tained by  the  principal  defendant  to  recover  the  prop- 
erty, yet  the  grantee  may  be  held  as  a  ganiishee  and  the 
property  subjected  to  the  plaintiff's  process.*^ 

•But  the  converse  of  the  general  rule  alluded  to  is  not 
true,  that  a  garnishee  can  be  held  upon  any  liability  to 
the  principal  defendant  which  the  latter  can  enforce. 
Thus,  indebtedness  which  the  statute  exempts  from  gar- 
nishment in  favor  of  the  principal  defendant,  although 
capable  of  being  made  the  subject  of  an  action  by  the 
defendant  against  the  garnishee,  cannot  become  the 
basis  for  charging  the  garnishee  in  favor  of  the  plaintiff, 
unless  the  riglit  of  exemption  be  waived.*®  So,  when  the 
money  or  property  in  the  hands  of  a  garnishee  has  been 
taken  from  the  principal  defendant  by  an  unlawful  seiz- 

43  Tabor     v.     Van     Vrankon,     39  v.  Sexton,  i?,  Mich.  454;  Cumminga 

Mich.  793;   Neumann  v.  Calumet  &  v.   Feaiey,   44   Mich.   39;    Bethel  v. 

Hecla  Min.   Co.,  .57   Mich.  97;    Blu-  Linn,    G3    Mich.    4G4;    Gumberg    v. 

nienthal  v.  Simons,  110  Mich.  42.  Treusch,    103    Mich.    543;    Baker   v. 

44Farwen  v.  Chambers,  62  Mich.  Parkhur.st,   119   Mich.   542;    Mussel- 

316;  Kane  v,  Clough,  36  Mich.  436.  man  Grocer  Co.   v.  Kidd,  etc.,  Co., 

46Jud.   Act,  ch.  28,   §32;    Comp.  151    Mich.    478;    Pierson   &   Hough 

Laws  1915,  §13153;  Blake  v.  Hub-  Co.  v.  Noret,  154  Mich.  267. 

bard,  45  Mich.   ]  ;    Fearey  v.  Cum-  46  School  Dist.  No.  4  v.  Gage,  .39 

niings,    41    Mich.    376;     Farrington  Mich.   484. 


832  Garnishment  §  10 

ure,  as  where  money  has  been  wronofuHy  taken  from  a 
prisoner  by  a  jailer,  it  cannot  be  reached  by  garnish- 
ment.*' So,  also,  a  debt  dne  to  the  principal  defendant 
and  another  cannot  be  made  the  basis  to  charge  the 
debtor  as  garnishee." 

§  11.  Exempt  property. 

Property  of  tlic  piincipal  dorondant  exempt  by  law 
from  execution  is  also  exempt  from  garnishment  process 
at  the  election  of  the  principal  defendant,  whether  in  the 
hands  of  a  third  person  by  bailment  or  otherwise.*®  So, 
also,  such  process  will  not  reach  property,  whether  real 
or  personal,  which  has  been  assigned  by  the  principal 
defendant,  if  it  would  be  exempt  from  execution  in  his 
hands,  even  though  the  assignment,  were  the  property 
not  exempt,  would  be  voidable  as  operating  to  defraud 
the  creditors  of  the  defendant.^"  And  the  principle  is 
extended  so  far  as  to  protect  from  garnishment  the  pro- 
ceeds of  a  sale  of  exempt  property  or  a  judgment  re- 
covered by  the  owner  for  a  wrongful  conversion  of  it  or 
the  amount  due  from  an  insurance  company  as  indemnity 
for  the  destruction  of  such  property  by  fire.  The  protec- 
tion, however,  does  not  endure  indefinitely,  but  it  does 
remain  until  such  time  as  the  owner  has  reasonable  op- 
portunity to  appropriate  the  proceeds  to  the  purpose  of 
replacing  the  exempt  property  so  sold,  converted  or  de- 
stioyed.^^ 

47  Hul)bar(l   v.   Garner,   115  Mich.  W  Wilson      v.     Bartholomew,     45 
406.  Mich.  41. 

48  Markham    v.    Gehan,    42    Mich.  O"  »"  is^ue  as  to  whether  money 

74;   Kennedy  v.  McLellan,  76  Mich.  "^   ^^'^   ''^"'^s  ^^   ^  garnishee  is  ex- 

.198;    Wellover    v.    Soule,    30    Mich.  ™'Pt  from  garnishment,  the  amount 

AO-,      c^  T->      T         Tin    in--  »         fjf  property  owned  by  defendant  is 

481;    Stone    v.    Dowling,    119    Mich.       .  .  ,      .,,  \^  .  ,   „ 

immaterial.     Kecor  v.  Commercial  & 

476;   Roof  v.  Blake,  187   Mich.  38;       .-     •  t)     i        *     o*.      m   •        i^o 

'  '  Savings    Bank     of     St.     Clair,     142 

Meigs    V.     Weller,    90    Mich.     629;       ^fj^.j,    479 

Nachtegali     v.     Reilley,     165     Mich.  50  Wilson   v.   Odell,  51   Mich.  492. 

347.  SlCullen  v.  Harris,  111  Mich.  20. 


§  14  Gaknishment  833 

§  12.  Indebtedness  on  note. 

A  negotiable  promissory  note  is  subject  to  garnish- 
ment after  maturity,  if  owned  by  the  principal  defend- 
ant,®^ but  not  before  maturity.^® 

§  13.  Waiver  by  garnishee. 

While  a  garnishee  cannot  waive  anything  affecting 
the  rights  of  other  parties,®*  he  may  waive  any  of  his 
own  rights,®®  including,  it  seems,  irregularities  in  the 
issuance  and  service  of  the  writ  of  garnishment.®^ 

II.  Affidavit 

§  14.  Necessity  for  and  sufficiency  of. 

The  affidavit  referred  to  above  is  a  jurisdictional  re- 
quirement and  must  conform  strictly  with  the  terms  of 
the  statute.  If  the  affidavit  be  omitted,  or  if  it  be  defec- 
tive, the  court  will  acquire  no  jurisdiction.®''^ 

The  affidavit  may  be  made  either  by  the  plaintiff  or  by 
his  agent  or  attorney.  If  made  by  an  agent  or  attorney, 
it  need  not  state  affirmatively  the  character  of  the  affiant. 
The  use  of  the  word,  ''agent,"  or  ''attorney,"  by  way 
of  recital  or  description,  is  sufficient.®^  Where  the  gar- 
nishment proceedings  are  ancillary  to  an  action  upon 
contract,  it  was  held,  under  the  former  statute  that  the 
affidavit  must  show  the  nature  of  the  contract,  whether 

62  Somers  v.  Losey,  48  Mich.  294;  101  Mich.  85;  Lichtenberg  v.  Wayne 

Serviss  v.  Washtenaw  Circuit  Judge,  Circuit  Judge,  106  Mich.  38;  Keppel 

116  Mich.  101;  Snider  v.  Ridgeway,  v.   Moore,   66   Mich.  292.     Compare 

49  111.  522.  Ettelsohn    v.    Fireman's    Fund   Ins. 

BSLittlefield    v.    Hodge,    6    Mich.  Co.,   64  Mich.   331. 

?26;     Carson    v.    Allen,    2    Chand.  66  Chamberlain     v.    Wallace,     174 

(Wis.)   123.     See  also  Karp  v.  Citi-  Mic-h.  613. 

zens'  Nat.  Bank,  76  Mich.  679.  67  Ettelsohn    v.    Fireman's    Fund 

64  Keppel     v,     Moore,     66    Mich.  Ins.  Co.,  64  Mich.  331;   Weimeister 

292;    Johnson    v.    Dexter,   38    Mich.  v.   Manville,   44   Mich.   408,   clerical 

695;  Blake  v.  Hubbard,  45  Mich,  1.  defect. 

66  Chamberlain    v.    Wallace,    174  68  Wetherwax    v.    Paine,    2    Mich. 

Mich.  613,  overruling,  so  far  as  to  555. 
the  contrary.  Heritage  v.  Armstrong, 
1  Abbott— 53 


834  Garnishment  §  14 

express  or  implied,  and  that  the  indebtedness  upon  which 
the  action  is  brought  is  an  indebtedness  upon  such  con- 
tract,^^  but  the  present  statute  does  not  classify  con- 
tracts as  being  express  or  implied. 

The  affidavit  must  aver  that  the  affiant  is  justly  appre- 
hensive of  the  loss  of  the  debt  unless  a  writ  of  garnish- 
ment issue  to  the  person  whom  it  is  intended  to  summon 
as  garnishee.  Therefore,  when  made  by  an  attorney  or 
agent,  it  should  not  allege  that  the  plaintiff  is  apprehen- 
sive, nor  should  it  aver  apprehension  unless  the  writ  of 
garnishment  issue  to  the  plaintiff,  but  unless  it  issue  to 
the  person  to  be  summoned  as  garnishee.^''  But  an  affi- 
davit by  one  of  several  plaintiffs  is  not  defective  for  stat- 
ing that  the  plaintiffs  are  apprehensive.^^ 

Where  the  affidavit  states  that  a  suit  has  been  com- 
menced by  the  plaintiff  against  the  principal  defendant, 
it  need  not  also  allege  that  the  suit  is  still  pending,  for 
the  statute  does  not  require  it  and  it  will  be  presumed, 
from  the  fact  that  an  action  has  been  commenced,  that 
it  is  still  pending.^^  Indeed,  an  affidavit  stating  that  the 
suit  is  about  to  be  commenced  will  confer  jurisdiction  if 
made  upon  the  same  day  the  suit  is  commenced.^^  Nor 
is  the  affidavit  required  to  show  that  the  debt  upon  which 
the  principal  action  is  brought  is  due  at  the  time  of  the 
commencement  of  the  garnishee  proceedings.^* 

If  the  garnishee  defendant  resides  in  another  county 
or  is  a  foreign  corporation,  the  affidavit  should  so  state.^* 

When  the  plaintiff  desires  to  charge  several  persons 
as  garnishees  for  debts  severally  owed  by  each  to  the 

B9  Conway  v.  Ionia  Circuit  Judge,  &  Stock  Board,  99  Mich.  80. 

46    Mich.    28;    Wcimeister    v.    Man-  62  State  Sav.  Bank  v.  Hosmer,  95 

ville,  44  Mich.  408;   Coe  v.  Hinkley,  Mich.  100. 

109    Mich.    608;    Ettelsohn   v.    Fire-  63  Millard      v.      Lenawee      Circuit 

man's  Fund  Ins.  Co.,  64  Mich.  331.  Judge,  107  Mich.  134. 

60  Wcimeister  v.  Manville,  44  64  State  Sav.  Bank  v.  Hosmer,  95 
Mich.  408;  Duryea  v.  Kaymond,  146  Mich.   100. 

Mich.  488.  65  Niehol    v.    Nevers,    196    Mich. 

61  Williams  v.  International  Grain       203. 


§  15  Garnishment  835 

principal  defendant,  and  for  property  of  the  principal 
defendant  severally  held  by  each,  which  the  statute  ex- 
pressly provides  may  be  done,^^  it  is  not  necessary  for  the 
plaintiff  to  make  a  separate  affidavit  for  each  proposed 
garnishee.  It  is  the  evident  intent  of  the  statute  to  en- 
able the  plaintiff,  by  a  single  affidavit  and  writ,  to  sum- 
mon in  any  and  all  persons  indebted  to  the  principal  de- 
fendant, or  having  property  in  their  custody  belonging 
to  the  principal  defendant,  and  require  a  disclosure  from 
each.  Only  the  subsequent  proceedings  against  the  gar- 
nishee defendants  are  required  to  be  against  each  of 
them  severally,  but  the  affidavit  in  such  case  against  sev- 
eral persons  severally  liable  to  the  principal  defendant 
should  neither  expressly  nor  impliedly  charge  them  with 
a  joint  liability,  for  this  would  render  it  ineffective  to 
charge  them  severally.  The  better  practice  is  to  allege 
distinctly  in  the  affidavit  the  character  of  the  liabilities 
as  being  several  rather  than  joint.^'' 

§.15.  Amendment. 

Although  an  affidavit  is  fatally  defective  if  it  fails  to 
comply  with  the  requirements  of  the  statute,  it  is  held 
that  amendments  may  be  allowed  for  the  correction  of 
merely  clerical  errors.  Thus,  where  a  clerical  mistake 
is  made  in  the  date  of  an  affidavit,  an  amendment  may 
be  allowed  to  correct  it,  especially  where  the  record  itself 
shows  the  nature  of  the  error.^*  And  where,  in  an  affidavit 
made  by  the  attorney  for  the  plaintiff,  the  name  of  the 
attorney  was  by  mistake  inserted  where  the  name  of 
the  garnishee  should  have  been,  the  affidavit  showed  upon 
its  face  that  the  error  was  merely  a  clerical  one,  subject 

66  Jud.  Act,  ch.  28,  §  33 ;  Comp.  68  Wattles  v,  Wayne  Circuit 
Laws   1915,   §13154.  Judge,  117  Mich.   662;   Union  Nat. 

67  State  Sav.  Bank  v.  Hosmcr,  95  Bank  v.  Muskegon  Circuit  Judge, 
Mich.  100;  Ball  v.  Young,  52  Mich.  117  Mich.  678;  Sachs  v.  Norn,  139 
476.     See  also   Lyon   v.   Ballentine,  Mich.  357. 

63  Mich.  97. 


836  Garnishment  §  15 

to  correction  by  amendment.^®  But  an  affidavit  by  an 
agent  or  attorney  of  the  plaintiff  which  states  that  the 
plaintilY  is  apprehensive,  instead  of  that  the  affiant  is 
apprehensive,  is  not  subject  to  amendment.''* 

§  16.  Making-  and  filing. 

The  affidavit  cannot  be  filed  before  the  commencement 
of  the  principal  suit,  but  it  may  be  tiled  at  that  time. 
Within  the  meaning  of  the  statute,  where  the  suit  is  com- 
menced by  declaration,  it  is  commenced  when  the 
declaration  is  filed,  and,  where  otherwise  commenced,  it 
is  commenced  when  the  plaintiff  has  performed  what- 
ever act  entitles  him  to  process.''^  It  is  not  necessary, 
before  the  affidavit  in  garnishment  may  be  filed,  that  the 
declaration  or  process  shall  have  been  served  upon  the 
principal  defendant  or  that  he  shall  have  appeared  in 
the  suit,  or  even  that  the  declaration  or  process  shall 
have  been  delivered  to  an  officer  for  service.  The  gar- 
nishment proceedings  are  supported  and  the  court  will 
have  jurisdiction  of  the  garnishee  defendant,  subject  tD 
the  necessity  of  obtaining  jurisdiction  of  the  principal 
defendant.''' 

The  statute  provides  when  the  affidavit  in  garnish- 
ment shall  be  filed,  but  is  silent  as  to  when  it  may  be 
made.  It  may  be  made  before  the  commencement  of  the 
principal  suit,  and,  where  made  on  the  same  day,  the  court 
acquires  jurisdiction;'^  but,  if  made  the  day  before,  it 
would  be  of  doubtful  validity.'* 

69  Millard  v.  Lenawee  Circuit  73  Millard  v.  Lenawee  Circuit 
Judpe,  107  Mich.  134.  Judge,  107  Mich.  134. 

70  Duryea  v.  Raymond,  146  Mich.  74  Union  Nat.  Bank  v.  Muskegon 
488.  Circuit  Judge,   117   Mich.  678.     See 

71  McDonald  v.  Alanson  Mfg.  Co.,  also  Drew  v.  Dequindre,  2  Doug. 
107  Mich.  10.  93;   Wilson   v.  Arnold,  5  Mich.  98; 

72Coe  V.  Hinkley,  109  Mich.  608;  Tcssenden  v.  Hill,  6  Mich.  242; 
McDonald  v.  Alanson  Mfg.  Co.,  107  McPherson  v.  McOillis,  93  Mich. 
Mich.  10.  525. 


§  16  Garnishment  837 

Form  of  Affidavit  for  Writ 

(Title  of  court  and  principal  cause,  if  principal  suit  has  been  commenced; 
if  not,  no  title.) 

State  of  Michigan,  ) 
County    of f 

A.  B.,  being  duly  sworn,  deposes  and  says  that  he  is  the  plaintiff  in  the 
above-entitled  cause  (or,  in  an  action  about  to  be  commenced  in  the  circuit 

court  for  the  county  of against  0.  D.,  as  defendant),  and  that  said 

cause  is  a  personal  action  arising  upon  contract;  that  he  has  good  reason 
to  believe,  and  does  believe,  that  G.  R.  has  property,  money,  goods,  chattels, 
credits,  or  effects  in  his  hands  or  under  his  custody  or  control,  belonging 
to  the  said  C.  D.  (or,  if  there  be  several  defendants,  to  any  or  either  of 
them,  naming  him  or  them),  and  that  the  said  G.  R.  is  indebted  to  the  said 
C.  D.  (or,  if  there  be  several  defendants,  to  any  or  either  of  them,  naming 
him  or  them),  whether  such  indebtedness  is  due  or  not;  that  the  said  C.  D. 
is  justly  indebted  to  the  said  plaintiff  upon  said  contract  in  the  sum  of 
dollars,  over  and  above  all  legal  set-offs. 

Deponent  further  says  that  he  is  justly  apprehensive  of  the  loss  of  the 
said  sum  of  money,  so  due  from  the  said  C.  D.  to  the  said  A.  B.,  as  afore- 
said, unless  a  writ  of  garnishment  issue  to  the  said  G.  R. 

A.  B. 

Subscribed,  etc, 

rorm  of  Affidavit  for  Writ  Upon  Judgment 

(Title  of  court  and  cause.) 
County  of ,  ss. 

A.  B.,  being  duly  sworn,  deposes  and  says  that,  on  the   day  of 

,  A.  D ,  a  judgment  was  rendered  in  said  court  in  favor  of 

A.   B.,   as  plaintiff,   and   against  C.  D.,   as   defendant,  upon  which   there 

remains  unpaid,  at  the  date  hereof,  the  sum  of dollars;  that  he  has 

good  reason  to  believe,  and  does  believe,  that  G.  R.  has  property,  money, 
goods,  chattels,  credits  or  effects  in  his  hands  or  under  his  custody  or 
control,  belonging  to  the  said  0.  D,  (or,  if  there  be  several  defendants,  to 
any  or  either  of  them,  naming  him  or  them),  and  that  the  said  G.  R.  is 
indebted  to  the  said  C.  D.  (or,  if  there  be  several  defendants,  to  any  or 
either  of  them,  naming  him  or  them),  whether  such  indebtedness  is  due  or 
not;   that  the  said  C.  D.  is  justly  indebted  to  the  said  A.  B.,  plaintiff  as 

aforesaid,  upon  the  said  judgment,  in  the  said  sum  of dollars,  over 

and  above  all  legal  set-offs. 

Deponent  further  says  that  he  is  justly  apprehensive  of  the  loss  of  the 
said  sum  of  money,  so  due  from  the  said  C.  D.  to  the  said  A.  B.,  as  aforesaid, 
unless  a  writ  of  garnishment  issue  to  the  said  G.  R. 

A.  B. 

Subscribed,  etc. 


838  Garnishment  §  16 

Form  of  Affidavit  for  Writ  Upon  Transcript  of  Judgment  of  Justice  of 

Peace 
(Title  of  court  and  cause.) 
County  of ,  ss. 

A.  B.,  being  duly  sworn,  deposes  and  says  that  a  judgment  was  rendered 

■by  J.  P.,  a  justice  of  the  peace  in  and  for  the  township  of ,  in  the 

said  county  of ,  on  the day  of ,  A.  D ,  in  favor 

of  the  said  A,  B.  and  against  C.  D.,  the  above-named  defendant,  for  the 

sum   of    dollars,   damages  and    costs,    of   which   said   judgment   a 

transcript  was,  on  the    day  of    ,  A.  D ,  duly  filed, 

entered,  and  docketed  in  the  office  of  the  clerk  of  the  circuit  court  for  the 

county  of ,  aforesaid,  and  that  there  remains  unpaid  upon  the  said 

transcript  at  the  date  hereof  the  sum  of dollars ;  that  he  has  good 

reason  to  believe,  and  does  believe,  that  G.  R.  has  property,  money,  goods, 
chattels,  credits  or  effects  in  his  hands  or  under  his  custody  or  control, 
belonging  to  the  said  C.  D.  (Or,  if  there  are  several  defendants,  to  any  or 
either  of  them,  naming  him  or  them),  and  that  the  said  G.  R.  is  indebted 
to  the  said  C.  D.  (or,  if  there  are  several  defendants,  to  any  or  either  of 
them,  naming  him  or  them),  whether  such  indebtedness  is  due  or  not;  and 
that  the  said  C.  D.  is  justly  indebted  to  the  said  A.  B.,  plaintiff,  upon  said 

Transcript,  in   the  said  sum  of    dollars,  over  and  above   all  legal 

set-offs. 

Deponent  further  says  that  he  is  justly  apprehensive  of  the  loss  of  the 
said  sum  of  money  so  due  from  the  said  C.  D.  to  the  said  A.  B.,  as  afore- 
said, unless  a  writ  of  garnishment  issue  to  the  said  G.  R. 

A.  B. 

Subscribed,  etc. 

Form  of  Affidavit  for  Writ  in  Action  Against  Non-Resident  or  Foreign 
Corporation,  Principal  Defendant 

To  the  general  form  of  affidavit  for  writ  of  garnishment  before  the 
words,  "Deponent  further  says,"  etc.,  insert  the  following: 

And  deponent  says  that  the  said  C.  D.,  principal  defendant,  as  aforesaid, 
is  a  non-resident  of  this  state  and  resides  in  the  state  of  ....  (or,  that 
the  said  C.  D.,  principal  defendant,  as  aforesaid,  is  a  foreign  corporation, 
organized  under  the  laws  of  the  state  of ) . 

III.  Writ 

§  17.  Form  and  contents. 

The  form  and  contents  of  the  writ  is  specially  pre- 
scribed by  statute.'^  It  has  been  held  not  necessary  to 
allege  therein  that  defendant  is  a  non-resident  or  foreign 

76  See  §3,  ante. 


§  17  Garnishment  839 

corporation/^  and  the  writ  is  not  defective  because  the 
day  of  the  week  and  the  day  of  the  month  named  therein 
do  not  correspond,  since  the  day  of  the  month  will  con- 
trol.''"'^ All  persons  made  garnishees  who  reside  in  the 
same  county  may  be  included  in  one  writ.''^® 

A  mere  clerical  error  as  to  the  month  in  the  return  day 
is  waived  by  appearance  and  answer  on  the  day  intended, 
and  is  not  fatal  to  the  proceedings,  and  the  summons 
might  be  amended  in  this  regard  after  answer,  or  the 
mistake  be  disregarded.''^*  So  a  mistake  in  warning  the 
agent  of  "plaintiff"  who  drew  the  affidavit,  to  pay  no 
more  money  to  the  principal  debtor,  is  not  fatal.^® 

Form  of  Writ  in  Action  Upon  Contract 

State  of  Michigan. 

The  Circuit  Court  for  the  Counity  of 

In  the  Name  of  the  People  of  the  State  of  Michigan. 
To  the  Sheriff  of  the  County  of   ,  Greeting: 

Whereas  A.  B.,  as  plaintiff,  has  conunenced  a  personal  action  arising 

upon  contract,  in  the  circuit  court  for  the  county  of ,  against  C.  D., 

as  defendant,  by  writ  of  summons  (or,  capias  ad  respondendum,  writ  of 
attachment,  or  declaration,  as  the  case  may  be),  and  has  filed  in  the  office 
of  the  clerk  of  said  coui-t  the  affidavit  of  A.  B.,  said  plaintiff,  stating, 
amongst  other  things,  that  he  has  good  reason  to  believe,  and  does  believe, 
that  (here  allege  the  corresponding  contents  of  the  affidavit)  : 

Now,  therefore,  you  are  hereby  commanded  to  warn  and  summon  the 

said  G.  E.  to  appear  before  said  court  on  or  before  the day  of , 

(some  day  not  less  than  fourteen  days  from  the  date  of  issuing  the 

writ  of  garnishment),  to  make  disclosure  in  writing  under  oath,  to  be  filed 
with  the  clerk  of  said  court,  touching  the  liability  of  said  G.  R.,  as 
garnishee  of  C.  D.,  principal  defendant  (or  any  or  either  of  the  defendants, 
naming  him  or  them),  as  charged  in  the  said  affidavit,  and  thenceforth  to 
pay  no  money  and  deliver  no  property  to  the  said  C.  D.,  principal  defendant 
(or  any  or  either  of  the  defendants,  if  there  be  several),  until  discharged. 
And  of  this  writ  make  due  reiturn  on  or  before  the day  of , 


Witness,  etc. 

76  Williams  v.  International  Grain  79  Wellover    v.    Soule,    30    Mich. 
&  Stock  Board,  99  Mich.  80.  481. 

77  State  Sav.  Bank  v.  Wayne  Cir-  80  Millard     v.      Lenawee     Circuit 
cuit  Judge,  95  Mich.  100.  Judge,   107  Mich.   134. 

78  See  §  6,  ante. 


840  Garnishment  §  17 

Form  of  Writ  in  Action  on  a  Judgment 

State  of  Michigan. 

The  Circuit  Court  for  the  County  of 

In  the  Name  of  the  People  of  the  State  of  Michigan. 
To  the  Sheriff  of  the  County  of   ,  Greeting : 

Whereas,  on  the  day  of  ,  ,  a  judgment  was  ren- 
dered in  the  circuit  court  for  the  county  of ,  in  favor  of  A.  B.,  as 

plaintiff,  and  against  C.  D.,  as  defendant,  for  the  sum  of dollars, 

damages,  and  dollars,  costs  of  suit; 

And  whereas  the  said  A.  B.  has  filed  in  the  office  of  the  clerk  of  said 
court  the  affidavit  of  A.  B.,  stating,  amongst  other  things,  that  he  has 
good  reason  to  believe,  and  does  believe,  that  (here  allege  the  corresponding 
contents  of  the  affidavit)  : 

Now,  therefore,  you  are  hereby  commanded  to  warn  and  summon  the  said 

G.  E.  to  appear  before  said  court  on  or  before  the day  of , 

(some  day  not  less  than  fourteen  days  from  the  date  of  issuing 

the  writ  of  garnishment),  to  make  disclosure  in  writing  under  oath,  to  be 
filed  with  the  clerk  of  said  court,  touching  the  liability  of  said  G.  R.  as 
garnishee  of  C.  D.,  principal  defendant  (or  any  or  either  of  the  defendants, 
naming  him  or  them),  as  charged  in  the  said  affidavit,  and  thenceforth  to 
pay  no  money  and  deliver  no  property  to  the  said  C.  D.,  principal  de- 
fendant   (or  any  or  either  of  the  defendants,  if  there  be  several),  until 

discharged.     And  of  this  writ  make  due  return  on  or  before  the   

day  of   , 

Witness,  etc. 

Form  of  Writ  Upon  Transcript  of  Judgment  of  Justice  of  the  Peace 

State  of  Michigan. 

The  Circuit  Court  for  the  County  of    

In  the  Name  of  the  People  of  the  State  of  Michigan. 

To  the  Sheriff  of  the  County  of  ,  Greeting : 

Whereas  a  judgment  was  rendered  by  J.  P.,  a  justice  of  the  peace  in 

and  for  the  township  of ,  in  the  said  county  of ,  on  the 

day  of   ,   ,  in  favor  of  A.  B.,  as  plaintiff,  and  against  C.  D., 

as  defendant,  for  the  sum  of dollars,  damages  and  costs,  of  which 

aaid  judgment   a  transcript  was,   on  the    day   of    ,    , 

duly  filed,  entered  and  docketed  in  the  office  of  the  clerk  of  the  said  circuit 
court  for  the  county  of ; 

And  whereas  the  said  A.  B.  has  filed  in  the  office  of  the  said  clerk  the 
affidavit  of  A.  B.,  stating,  amongst  other  things,  that  he  has  good  reason 
to  believe  and  does  believe  that  (here  allege  the  corresponding  contents  of 
the  affidavit)  : 

Now,  therefore,  you  are  hereby  commanded  to  warn  and  summon  the  said 

G.  R.  to  appear  before  said  circuit  court  on  or  before  the  day  of 

,   (some  day  not  less  than  fourteen  days  from  the  date  of 

issuing  the  writ  of  garnishment),  to  make  disclosure  in  writing  under  oath, 


§  19  Garnishment  841 

to  be  filed  with  the  said  clerk,  touching  the  liability  of  the  said  G.  E.  as 
garnishee  of  the  said  C.  D.,  principal  defendant  (or  any  or  either  of  the 
defendants,  naming  him  or  them),  as  charged  in  the  said  affidavit,  and 
thenceforth  to  pay  no  money  and  deliver  no  property  to  the  said  C.  D., 
principal  defendant  (or  any  or  either  of  the  defendants,  if  there  be 
several),  until  discharged.    And  of  this  writ  make  due  return  on  or  before 

the day  of , 

Witness,  etc. 

§  18.  Service  of  writ. 

The  method  of  serving  the  writ  in  ordinary  cases  is 
not  specially  prescribed  by  statute,^^  but  it  seems  that 
it  is  to  be  served  in  the  same  manner  as  process  in  gen- 
eral.*^ The  fact  that  the  copy  served  omitted  the  date 
of  issue  and  the  name  of  the  clerk  is  not  fatal.^*  It  has 
been  held  that  actual  service  is  necessary  and  cannot  be 
waived  by  the  garnishee  as  against  the  principal  defend- 
ant so  as  to  bind  the  latter,^*  and  that  a  joint  debt  can- 
not be  reached  where  there  is  service  on  only  one  of  the 
debtors.*' 

The  return  of  service  of  the  writ  must  show  legal  serv- 
ice of  the  writ  on  the  garnishee.*® 

The  service  of  the  writ  creates  a  lien  on  the  property 
of  the  principal  defendant  in  the  hands  of  the  garnishee 
defendant.*'' 

§  19.  On  domestic  corporations. 

In  case  of  garnishment  proceedings  against  a  domestic 
corporation,  the  writ  of  garnishment  may  be  served 
in  the  same  manner  as  process  in  general,**  i.  e.,  except 

81  Lyon    v.    Baldwin,    194    Mich.  86  Hirth  v.  Pfeifle,  42  Mich.  31. 
118.  86  McCain      v.      Wayne      Circuit 

82  Lyon  v.  Baldwin,  194  Mich.  118.      Judge,   187  Mich.   73,  where  return 
This  applies  to  service  on  a  cor-      failed    to    show    how   person    served 

poration    such    as    a    bonding    com-  was    connected    with    garnishee    de- 

pany.     Drueke-Lynch    Co.    v.    Mich-  fendant. 

igan    Bonding    &    Surety    Co.,    204  87Riekman  v.  Rickman,  180  Mich. 

Mich.  180.  224,  251. 

83  Lyon  V.  Baldwin,  194  Mich.  118.  88Jud.   Act,  ch.   28,   §46;    Comp. 

84  Hebel  v.  Amazon  Ins.  Co.,  33  Laws  1915,  §  13167,  as  amended  by 
Mich.  400.  Pub.  Acts  1919,  No.  233. 


842  Garnishment  §  19 

where  provision  is  made  for  some  special  method  of 
service  upon  the  corporation,'®  upon  ''any"  officer,  di- 
rector, trustee  or  agent  of  the  corporation  or  by  leaving 
it  during  the  regular  office  hours  at  the  office  of  the  cor- 
poration with  any  person  in  charge  of  the  office.®**  Serv- 
ice upon  a  corporation  owning  or  operating  a  steam,  elec- 
tric or  street  railway  in  the  state  may  also  be  made  upon 
any  station  agent  or  ticket  agent  at  any  station  or  depot 
along  the  line  or  at  the  end  of  the  road  of  the  company, 
or  upon  any  conductor  in  charge  of  any  train  or  car  of 
the  company  along  the  line  or  at  the  end  of  the  road  of 
the  company,  except  conductors  of  street  cars  in  cities 
where  the  home  office  of  the  corporation  is  located.®^ 

Prior  to  the  Judicature  Act  an  agent  could  not  be 
served  unless  a  ''general"  agent.  Thereunder  it  was 
held  that  every  servant  of  a  corporation,  whatever  be  the 
grade  of  his  duties  is,  in  a  sense,  an  agent,  but  there  must 
be  something  more  definite  than  the  mere  designation  of 
a  man  as  agent  before  a  court  can  say  that  his  relation  to 
the  corporation  is  such  as  to  make  him  its  representative 
for  the  purpose  of  receiving  service  of  process  of  it;®^ 
and  that  a  return  of  service  by  delivering  a  copy  of  the 
writ  to  a  person  described  as  the  agent  of  the  corpora- 
tion, "having  charge  of  its  affairs  within  said  county," 
is  insufficient  to  give  the  court  jurisdiction,  for  it  omits 

89  Under    this   statute,    service    of  90Jud.   Act,   ch.   13,   §29;    Comp. 
garnishee   process,   against   a  Mich-  Laws  1915,  §12432;  Pub.  Acts  1919, 
igan    bonding    company    should    be  No.  233.     This  is  true  also  of  part- 
made  on  the  commissioner  of  insur-  nership   associations   and   unincorpo- 
ance,  as  provided  for  by  Jud.  Act,  rated     voluntary     associations.      See 
ch.    13,    §33;     Comp.    Laws    1915,  Commencement  of  Actions. 
§12436,    and   Pub.    Acts    1907,    No.  91Jud.   Act,   ch.    13,    §30;    Comp. 
321,    rather    than    on    the    secretary  Laws   1915,   §  12433. 
of  the  company  as  provided  for  in  92  Lake  Shore,  etc.,  E.  Co.  v.  Hunt, 
ordinary  cases  by  Jud.  Act,  ch.  13,  39    Mich.    469.      See    German-Amer- 
§29;     Comp.    Laws    1915,    §12432.  ican   Ins.   Co.   v.   Steere,   105   Mich. 
Drueke-Lynch      Co.      v.      Michigan  566. 
Bonding    &    Surety    Co.,    204    Mich. 
180. 


§  21  Garnishment  843 

to  state  the  nature  of  the  corporation 's  affairs  within  the 
county  and  therefore  does  not  show  that  the  agent  had 
any  authority  to  control  the  affairs  of  the  corporation, 
but  if  the  return  states  that  the  corporation  was  con- 
ducting a  business  of  some  kind  within  the  county  and 
that  such  business  was  within  the  charge  and  control  of 
the  agent,  it  will  be  sufficient.^^  These  decisions  appar- 
ently are  of  no  force  under  the  Judicature  Act.  A  book- 
keeper is  not  such  an  officer  or  agent  as  can  appear  for  or 
bind  the  corporation  by  which  he  is  employed.®* 

§  20.  On  foreign  corporations. 

In  case  of  the  garnishment  of  a  foreign  corporation, 
the  writ  of  garnishment  may  be  served  upon  any  officer 
or  agent  of  the  coi-poration  within  this  state,  and  any 
person  representing  the  corporation  in  any  capacity  will 
be  deemed  an  agent  for  this  purpose.  If  the  corporation 
has  a  legally  designated  agent  or  attorney  in  the  state 
appointed  in  pursuance  of  statute  for  receiving  service 
of  process  upon  the  corporation,  service  may  also  be 
made  upon  such  agent  or  attorney.®* 

A  resident  agent  of  a  foreign  mining  company,  whose 
duties  consist  in  acting  as  custodian  of  the  corporate 
property  in  the  county  where  its  mining  operations  are 
carried  on  and  inspecting  the  work  of  its  contractors  in 
such  county,  is  a  competent  agent  upon  whom  to  make 
service  of  a  writ  of  garnishment  against  the  corpora- 
tion.®^ 

§  21.  On  municipal  corporations. 

In  garnishment  proceedings  against  a  county,  service 
of  the  writ  of  garnishment  may  be  made  upon  the  chair- 

93Kirby   Carpenter  Co.   v.   Trom-  service    upon    insurance    companies, 

blcy,  101  Mich.  447.  see   Jud.   Act,   ch.    13,    §33;    Comp. 

OiPettit    V.    Muskegon    Booming  Laws  1915,  §12436. 

Co.,  74  Mich.  214.  96  Shafer   Iron    Co.    v.    Stone,    88 

96  Jud.   Aft,  ch.   13,   §31;    Comp.  Mich.  464. 
Laws    1915,    §12434.      And    as    to 


844  Garnishment  §  21 

man  of  the  board  of  supervisors  or  the  county  clerk.  If 
against  a  city,  service  may  be  made  upon  the  mayor,  the 
city  clerk  or  the  city  attorney.  If  against  a  village,  serv- 
ice may  be  made  on  the  president  or  clerk  or,  in  their  ab- 
sence, upon  any  trustee.  If  against  a  township,  service 
may  be  made  upon  the  supervisor  or  township  clerk.  If 
a  school  district  be  proceeded  against  as  garnishee,  serv- 
ice of  the  writ  may  be  made  upon  the  president  of  the 
board  of  education,  director,  moderator  or  treasurer  of 
the  district.^' 

§  22.  Where  garnishee  resides  out  of  county. 

If  any  person  named  in  the  affidavit  for  a  writ  of  gar- 
nishment be  stated  to  reside  out  of  the  county  in  which 
the  suit  in  garnishment  is  brought,  the  writ  of  garnish- 
ment may  be  served  by  any  competent  person,  and  any 
execution  against  the  garnishee  may  be  directed  to  the 
sheritf  of  any  county  in  this  state  in  which  he  resides. 
Such  sheriff  is  required  to  serve  the  execution  in  the 
manner  required  in  other  cases  and  to  make  return  of 
his  doings  to  the  clerk  of  the  county  from  which  the 
execution  issued.^^  It  is,  however,  only  when  jurisdic- 
tion of  the  principal  suit  has  been  obtained  in  the  county 
in  which  the  suit  is  planted,  either  by  personal  service 
of  process  or  attachment  of  property  or  credits  in  that 
county,  that  a  writ  of  garnishment  may  be  issued  to  a 
different  county.®^  There  is  no  authority  for  maintain- 
ing garnishment  proceedings  in  any  court  other  than  that 
in  which  the  principal  suit  is  pending  or  judgment  has 
been  rendered. 

97Jud.   Act,   ch.   13,    §35;    Comp.  99  Stern  v.  Frazer,  105  Mich.  685; 

Laws  1915,  §  12438.  Fell  v.  Gorman,  144  Mich.  521. 

98Jud.  Act,  ch.  28,  §36;  Comp. 
Laws  1915,  §13157;  Nichol  v. 
Nevers,  196  Mich.  203. 


§  24  Garnishment  845 

IV.  Disclosure,  Interrogatories  and  Oral  Examination 

§  23.  Disclosure  by  garnishee — Time  for  filing. 

In  accordance  with  the  tenor  of  the  writ  of  garnish- 
ment, the  disclosure  of  the  garnishee  should  be  filed  with 
the  clerk  of  the  court  on  or  before  the  day  fixed  in  the 
writ  for  that  purpose,^  and  within  the  same  time  a  copy 
of  the  disclosure  should  be  served  upon  the  attorney  for 
the  plaintiff. 

However,  a  circuit  court  commissioner  of  the  county 
where  the  garnishment  proceedings  have  been  com- 
menced or  the  circuit  judge  may,  for  proper  cause  shown 
by  the  affidavit  of  any  credible  person,  make  an  order 
extending  the  time  for  the  garnishee  to  file  his  disclosure. 
Such  order  must  be  filed  with  the  clerk  of  the  court  and  a 
copy  of  it  served  on  the  plaintiff  or  his  attorney;  but 
such  time  cannot  be  extended  more  than  three  times, 
except  by  consent.^ 

After  the  writ  of  garnishment  has  been  properly  served 
upon  the  garnishee,  but  not  until  it  has  been  properly 
served,  for  the  garnishee  has  no  power  to  bind  the  prin- 
cipal defendant  by  consenting  to  anything  short  of  a 
valid  service,^  and  on  or  before  the  day  named  in  the  writ 
for  the  appearance  of  the  garnishee,  he  should  file  his 
disclosure  in  writing  under  oath  touching  his  liability 
as  garnishee  of  the  principal  defendant,  as  charged  in 
the  affidavit. 

§  24.  Contents  and  effect. 

The  disclosure  should  in  all  cases  answer  the  allega- 
tions of  the  affidavit,  but  nothing  more.  If  the  affidavit 
charges  the  garnishee  with  having  in  his  hands  or  under 

IJud.    Act,    ch.    28,    §1;    Comp.  principal     defendant.       Iron     Cliffs 

Laws  1915,  §  13122.  Co.  v.  Lahais,  52  Mich.  394. 

A    disclosure    before    jurisdiction  2  Jud.    Act,    ch.    28,    §6;    Comp. 

of  the  principal  case  has  been  ob-  Laws  1915,   §  13127. 

tained  is  of  no  force,  and  not  cured  3  Hebel    v.    Amazon    Ins.    Co.,    33 

by  the  subsequent  appearance  of  the  Mich.  400. 


846  Gaknishment  §  24 

his  custody  or  control  property  belonging  to  the  prin- 
cipal defendant,  and  also  with  being  indebted  to  the 
principal  defendant,  the  disclosure  should  cover  both  of 
these  different  grounds;  but,  if  the  affidavit  simply 
charges  that  the  garnishee  has  property  belonging  to  the 
defendant,  the  disclosure  should  be  silent  as  to  any  in- 
debtedness to  the  defendant,  and  vice  versa.* 

In  answering  the  allegations  of  the  affidavit,  the  gar- 
nishee should  set  forth  in  his  disclosure  the  facts  bear- 
ing upon  the  question  of  his  liability  to  the  defendant, 
taking  great  care  not  to  admit  a  liability  where  none 
exists  or  to  admit  a  liability  greater  than  exists.  Very 
frequently  a  garnishee  is  unable  to  state,  of  his  own  per- 
sonal knowledge,  whether  he  is  liable  at  all  to  the  de- 
fendant, or  to  set  forth  on  his  own  knowledge  some  of 
the  facts  which  may  have  an  important  influence  upon 
the  question  either  of  the  existence  or  of  the  amount 
of  a  liability  to  the  defendant.  In  such  a  case,  it  is  en- 
tirely competent  for  the  garnishee  to  make  his  averments 
upon  information  and  belief.  He  has  the  right,  and  it  is 
his  duty,  to  state  in  his  answer  every  fact  within  his 
knowledge  which  has  any  legitimate  tendency  to  show 
that  he  ought  not  to  be  charged,  and  he  may  state  even 
matters  of  hearsay  touching  his  liability  to  the  principal 
defendant.^ 

He  is  allowed  to  claim  any  set-off  which  he  has  against 
the  principal  defendant  of  which  he  could  have  availed 
himself  if  he  had  not  been  garnished,  and,  if  he  does  so, 
he  will  be  liable  only  for  the  balance  after  adjustment  of 
the  mutual  demands,  but  he  cannot  make  a  counterclaim 
for  any  unliquidated  damages.® 

While  a  garnishee  may  by  his  disclosure  admit  away 

4Botsford  V.   Simmons,  32   Mich.  etc.,  K.  Co.,  98  Mich.  648;  O'Connor 

352;  Mack  v.  Brown,  20  Mich.  335.  v.  White,   124  Mich.  22;   Walker  v. 

6  Drake    v.    Lake    Shore,    etc.,    E.  Detroit,  etc.,  E.  Co.,  49  Mich.  446. 

Co.,  69  Mich.  168;   Sexton  v.  Amos,  6  Jud.    Act,   ch.    28,    §38;    Comp. 

39  Mich.   695;   Crisp  v.  Ft.  Wayne,  Laws  1915,  §13159. 


§  24  Garnishment  847 

his  own  rights,  as  by  averring  that  he  is  indebted  to  the 
defendant  when  he  actually  is  not,  or  by  averring  an  in- 
debtedness to  the  defendant  when  the  indebtedness  is 
really  to  another  person,  he  cannot  in  this  manner  waive 
or  admit  away  the  rights  either  of  the  defendant  or  of 
such  other  person.'  Where  the  garnishee  is  uncertain 
whether  the  indebtedness  owing  by  him  to  the  principal 
defendant  is  subject  to  an  exemption  in  favor  of  the  lat- 
ter, he  is  not  compelled  to  determine  the  question,  but 
may  state  any  fact  that  has  come  to  his  knowledge,  by 
hearsay  or  otherwise,  and  that  he  does  not  know  whether 
the  defendant  is  entitled  to  the  exemption  or  not.  The 
disclosure  should  take  this  form  for  the  garnishee's  own 
protection,  for,  if  the  defendant  should  be  entitled  to  an 
exemption,  the  garnishee  would  be  liable  to  him  for  the 
amount  of  it,  regardless  of  the  nature  of  his  disclosure  or 
his  liability  upon  it.^  The  garnishee  may  thus  subject 
•himself  to  a  double  liability,  but  it  is  always  within  his 
power  to  protect  himself  by  his  disclosure,  for  he  cannot 
be  held  until  his  liability  is  clearly  established.  He  may 
also,  for  the  purpose  of  his  own  protection  against  the 
possibility  of  a  double  liability,  make  a  further  and  sup- 
plemental disclosure  setting  forth  facts,  whether  mat- 
ters of  hearsay  or  otherwise,  limiting  the  admissions  of 
his  original  answer.^ 

A  disclosure  does  not  stand  on  the  same  footing  as  the 
testimony  of  a  witness.  It  rather  is  the  answer  of  a  party 
upon  which  the  plaintiff  may  take  judgment,  if  it  dis- 
closes a  liability,  unless  the  garnishee  demands  a  trial. 

7  Hebel    v.    Amazon    Ins.    Co.,    33  8  Crisp  v.  Ft.  Wayne,  etc.,  K.  Co., 

Mich.     400;     Hirth    v.     Pfeifle,    42  98  Mich.  648. 

Mich.    31;    Tabor   v.  Van  Vranken,  9  Drake    v.    Lake    Shore,    etc.,    R. 

39  Mich.  793;   Union  Bank  v.  Han-  Co.,  69  Mich.  168;  Barber  v.  Howd, 

ish,  97  Mich.  404;  Hitchcock  v.  Mil-  85    Mich.    221;     Karp    v.    Citizens' 

ler,  48   Mich.  603;    Hosley  v.   Scott,  Nat.  Bank,  76  Mich.   679;   Allen  v. 

r)9   Mich.   420;    First   Nat.   Bank   v.  Hamburg-Bremen  Fire  Ins.  Co.,  121 

Mellcn,   45   Mich.    413;    Kimball   v.  Mich.  86. 
Macomber,  50  Mich.  362. 


848  Garnishment  §  24 

It  is  somewhat  analogous  in  its  functions  to  an  answer 
in  chancery, — whatever  is  admitted  by  it  the  plaintiff 
may  treat  as  established.^"  On  the  other  hand,  unless 
there  be  a  demand  for  a  trial  of  the  statutory  issue,  which 
will  be  hereafter  explained,  the  disclosure,  supplemented, 
as  it  may  be  at  the  option  of  the  plaintiff,  by  the  garni- 
shee's answers  to  special  interrogatories  or  upon  a  per- 
sonal examination  of  the  garnishee,  which  also  will  be 
presently  explained,  must  be  the  exclusive  basis  for  any 
judgment  recovered  by  the  plaintiff  against  the  garni- 
shee. Such  disclosure  and  supplementary  answers,  un- 
less contested  by  the  plaintiff  upon  a  statutory  issue,  are 
conclusive  upon  the  plaintiff  and  cannot  be  contradicted 
by  him."  Where,  however,  the  garnishee  makes  dis- 
closure or  answers,  even  denying  any  liability,  and  the 
trial  of  a  statutory  issue  is  claimed,  the  disclosure  and 
answers  are  not  conclusive  upon  the  plaintiff,  but  may 
be  met  by  adequate  testimony  to  the  contrary.^^  The 
liability  of  the  garnishee,  in  case  of  such  issue,  depends 
not  solely  upon  his  disclosures  and  his  answers  to  spe- 
cial interrogatories  and  upon  a  personal  examination, 
but  upon  the  result  of  the  trial  as  deteraiined  by  the  evi- 
dence, including  not  only  these,  but  also  whatever  other 
competent  and  material  evidence  is  adduced.^' 

It  is  provided  by  statute  that,  if  any  person  summoned 
as  a  garnishee,  or  if  any  officer,  agent  or  other  person 
who  shall  appear  and  answer  for  a  corporation  so  sum- 
moned shall,  upon  his  disclosure  or  examination  on  oath, 
knowingly  and  wilfully  answer  falsely,  he  shall,  out  of 
his  own  goods  and  estate,  pay  to  the  plaintiff  in  garnish- 

10  Allen  V.  Hazen,  26  Mich.  142.  Mich,   695;    Spears  v.   Chapman,  43 

11  People   V.    Cass   Circuit   Judge,      Mich.  541. 

39  Mich.  407;  Smith  v.  Holland,  81  12  Fearey   v.   Cummings,  41   Mich. 

Mich.  471;  Fearey  v.  Cummings,  41  376;   Cummings  v.  Fearey,  44  Mich. 

Mich.  376;  Cummings  v.  Fearey,  44  39;    Whitfield    v.    Stiles,    57    Mich. 

Mich.    39;    Lyon    v.    Kneeland,    58  410. 

Mich.  570;   Thompson  v.  Jarvis,  39  13  Whitfield  v.  Stiles,  57  Mich.  410. 


§  24  Garnishment  849 

ment  or  to  his  executors  or  administrators  the  full 
amount  due  on  the  judgment  recovered  therein,  with  in- 
terest, to  be  recovered  in  a  special  action  on  the  case;  and 
he  shall,  moreover,  on  conviction  thereof  upon  indict- 
ment, be  adjudged  guilty  of  perjury." 

Unless  the  plaintiff  in  the  action,  within  ten  days  after 
notice  is  served  upon  him  or  his  attorney  of  the  filing 
of  the  garnishee's  disclosure  with  the  clerk  of  the  court, 
files  special  interrogatories  thereto,  or  files  a  demand  for 
an  examination  of  the  garnishee  before  the  judge  of  the 
court  or  a  circuit  court  commissioner,  the  disclosure  will 
be  deemed  sufficient  unless  the  judge  or  court,  on  applica- 
tion and  showing,  extends  the  time  for  filing  such  inter- 
rogatories or  demand  for  such  examination.^^  But  the 
plaintiff  may  have  a  trial  of  the  statutory  issue,  without 
filing  special  interrogatories  or  demanding  a  personal 
examination  of  the  garnishee. ^^ 

Form  of  Disclosure  Admitting  Liability 
The  Circuit  Court  for  the  County  of 

A.  B. 

vs. 
G.   E., 

Garnishee  of 
C.  D., 

Principal    Defendant. 

County  of  ,  sa. 

Comes  now  the  said  garnishee,  and,  for  disclosure  touching  his  liability 
as  garnishee  of  the  said  C.  D.,  principal  defendant,  as  charged  in  the 
affidavit  for  the  writ  of  garnishment  in  this  cause,  says: 

1.  That,  at  the  time  of  the  service  upon  him,  the  said  garnishee,  of  the 
said  writ  of  garnishment,  he,  the  said  garnishee,  had  in  his  hands  and 
nndcr  his  custody  and  control  the  following  goods  and  chattels:  (Here 
describe  the  property,)  belonging  to  the  said  C  D.,  and  that  the  said  goods 
and  chattels  still  remain  in  the  hands  and  under  the  custody  and  control 
of  the  said  garnishee,  but  that  he  had  not  in  his  hands  or  under  his  custody 

14,Jud.  Act,  eh.  28,  §40;  Comp.  land,  81  Mich.  471;  People  v.  Cass 
Laws   1915,   §13161.  Circuit  Judge,  ."^O  Mich.  407. 

ISJud.    Act,    ch.    28,    §3;    Comp.  16  Hobson  v.  Kelly,  87  Mich.  187. 

Laws  1915,   §13124;    Smith  v.  Hol- 
1  Abbott— 54 


850  Gaenishment  §  24 

or  control  any  other  property,  money,  goods,  chattels,  credits,  or  effects 
belonging  to  the  said  C.  D. 

2.  That,  at  the  time  of  the  service  upon  him,  the  said  garnishee,  of  the 
said  writ  of  garnishment,  he,  the  said  garnishee,  was  indebted  to  the  said 

C.  D.,  principal  defendant,  in  the  sum  of dollars,  over  and  above  all 

legal  set-offs;  that  said  indebtedness  is  now  due  (or,  that  said  indebtedness 

will  mature  on  the day  of ,  A.  D ) ;  and  that  he  was 

not  indebted  to  the  said  C.  D.,  principal  defendant,  in  any  other  sum  or 
sums  whatsoever,  either  due  or  to  become  due. 

(If  any  other  person  than  the  defendant  claims  the  property  or  indebted- 
ness, the  garnishee  may  add  the  following:  And  the  said  garnishee  further 
(declares  that  the  said  goods  and  chattels  and  the  said  indebtedness  are 

claimed  by   O.   P.,  who  resides   in  the    of    ,   in   the  county 

of   ) 

G.  E. 

L.  M.,  Attorney  for  Garnishee. 

Business  address: ,  Mich. 

State  of  Michigan,  ) 
County  of ( 

On  this  day  of ,  in  the  year ,  before  me,  a , 

in  and  for  said  county,  personally  came  G.  R.,  the  garnishee  named  in  the 
foregoing  disclosure  by  him  subscribed,  and,  having  been  by  me  first  duly 
sworn,  says  that  he  has  read  (or,  has  heard  read)  the  said  disclosure  and 
knows  the  contents  thereof,  and  that  the  same  is  true  in  substance  and  in 
fact. 


(Official  title.) 

Form    of   Disclosure   by   Garnishee    Denying   Liability 
The  Circuit  Court  for  the  County  of   

A.  B. 

vs. 
G.  R., 

Garnishee  of 
C.  D., 

Principal  Defendant. 

County  of ,  ss. 

Comes  now  the  said  garnishee,  and,  for  disclosure  touching  his  liability 
as  garnishee  of  the  said  C.  D.,  principal  defendant,  as  charged  in  the 
affidavit  for  the  writ  of  garnishment  in  this  cause,  says: 

1.  That,  at  the  time  of  the  service  upon  him,  the  said  garnishee,  of  the 
said  writ  of  garnishment,  he,  the  said  garnishee,  had  not  in  his  hands  or 
under  his  custody  or  control  any  property,  money,  goods,  chattels,  credits 
or  effects  belonging  to  the  said  C.  D.,  principal  defendant. 


§  26  Garnishment  851 

2.  That,  at  the  time  of  the  service  upon  him,  the  said  garnishee, 
of  the  said  writ  of  garnishment,  he,  the  said  garnishee,  was  not  indebted 
to  the  said  C.  D.,  principal  defendant,  in  any  sum  or  sums  whatever,  either 
due  or  to  become  due. 

G.  R. 
L.  M.,  Attorney  for  Garnishee. 
Business  address : ,  Mich. 

State   of   Michigan,  | 
County    of ,  t 

On  this day  of   ,  in  the  year ,  before  me,  a , 

in  and  for  said  county,  personally  came  G.  E.,  the  garnishee  named  in 
the  foregoing  disclosure  by  him  subscribed,  and,  having  been  by  me  first 
duly  sworn,  says  that  he  has  read  (or,  has  heard  read)  the  said  disclosure 
and  knows  the  contents  thereof,  and  that  the  same  is  true  in  substance  and 
in  fact. 


(Official  title.) 


§  25.  Amendments  or  supplementary  disclosure. 

The  disclosure  is  amendable  in  the  discretion  of  the 
court, ^^  as  by  showing  that  it  was  a  mistaken  one  and 
that  in  fact  the  garnishee  was  not  indebted  to  the  judg- 
ment debtor  but  to  a  third  person. ^^  So  a  garnishee  has 
the  right  to  make  a  further  and  supplemental  dis- 
closure.^® And  where  debtors  of  an  insolvent  have  been 
sued  by  their  creditor's  assignee  after  being  garnished, 
they  should  ask  leave  to  file  a  supplemental  disclosure 
setting  up  the  alleged  assignment.*^" 

§26.  Special  interrogatories. 

If  special  interrogatories  are  filed,  where  the  dis- 
closure is  not  satisfactory,  the  garnishee  or  his  attorney 
in  the  action  must  be  served  with  a  copy  of  them,  to- 
gether with  a  notice  from  the  plaintiff  or  his  attorney 
that  the  garnishee  is  required  to  answer  such  interroga- 
tories in  writing  within  ten  days  after  such  service.    It 

17  Newell  V.  Blair,  7  Mich.   103;  19  Drake  v.  Lake  Shore  &  M.  S. 

Dunn    V.    Detroit    Sav.    Bank,    118  Ry.  Co.,  69  Mich.  168. 

Mich.  547.  20  Butler  v.  Wendell,  57  Mich.  62. 

ISGerow  v.  Hyde,  131  Mich.  442. 


852  Garnishment  §  26 

thereupon  becomes  the  duty  of  the  garnishee  to  answer 
the  interrogatories  on  oath  and  file  his  answer  with  the 
clerk  of  the  court  within  such  ten  days,  but  the  time  for 
answering  may  be  extended  on  application  and  showing 
to  the  court.^^ 

Form  of  Special  Interrogatories 
(Title  of  court  and  eause  as  in  form  of  disclosure.) 

Comes  now  the  said  plaintiff,  by  J.  K.,  his  attorney,  and,  to  the  disclosure 
of  the  said  G.  R.,  garnishee  as  aforesaid,  specially  interrogates  the  said  G.  R., 
as  follows : 

1.  Did  you  not,  at  the  time  of  the  service  upon  you  of  the  writ  of  gar- 
nishment herein,  have  in  your  custody,  at ,  a  certain  promissory  note 

(describe  it,  if  description  be  known)  belonging  to  the  said  C.  D.?  (Or, 
whatever  the  fact  is  supposed  to  be  which  it  is  desired  should  be  disclosed.) 

2.  Were  you  not,  at  the  time  of  the  service  upon  you  of  the  said  writ  of 
garnishment,  indebted  to  the  said  C.  D.  in  a  sum  of  money  for  goods  which, 
before  that  time,  he,  the  said  C.  D.,  had  bargained  and  sold  to  you?  (Or 
any  other  question  calculated  to  bring  out  facts  showing  the  existence  of  an 
indebtedness  by  the  garnishee  to  the  principal  defendant.) 

J.  K., 
Attorney  for  Plaintiff. 

Form   of  Answer   of  Garnishee  to   Special  Interrogatories 
(Title  of  court  and  cause  as  in  form  of  disclosure.) 

Comes  now  the  said  garnishee,  and  for  answer  to  the  special  interroga- 
tories, now  on  file,  to  the  disclosure  of  the  said  garnishee  in  this  cause,  says: 

1.  To  the  first  interrogatory,  that  he  did  not,  at  the  time  of  the 
service  upon  him  of  the  writ  of  garnishment  herein,  have  in  his  hands  or 
under  his  custody  or  control,  at   or  elsewhere,  the  promissory  note 

81  Jud.  Act,  ch.  28,  §4;  Comp.  in,  and  that  said  garnishee  is  re- 
Laws  1915,  §  13125.  quired    to    answer   to    the   same,   in 

writing  on  oath,  and  file  his  answer 

Form  of  Notice  to  Be  Served  by         ..,    .,„    ,^  ,    „*      -i  i.      -xi,- 

Plaintiff    Upon    Garnishee    with      ^^*^  *^«  ^^"^  «^  ^^'^  «o"^t  ^t^^° 

Copy  of  Special  Interrogatories      t^"  a^Js  after  the  service  upon  you 

(Title  of  court  and  cause.)  of   this   notice    and   a   copy   of   the 

„.   . said  special  interrogatories. 

You    will    please    to    take    notice  Dated,  etc. 
that  the  annexed  is  a  copy  of  spe-  Yours,  etc., 

eial    interrogatories,    this    day    filed  J.  K., 

in  said  cause,  to  the  disclosure  here-  Attorney  for  Plaintiff, 

tofore  filed  by  said  garnishee  here-  To  S.  K.,  Attorney  for  Garnishee. 


§  27  Garnishment  853 

described  in  said  interrogatory  or  any  similar  promissory  note  belonging 
to  the  said  0.  D.,  principal  defendant. 

Or, 

1.  To  the  first  interrogatory,  that,  at  the  time  and  place  mentioned  in 
said  interrogatory,  he,  the  said  garnishee,  had  in  his  custody  a  promissory 
note  of  the  description  made,  but  said  note  did  not  then  or  at  any  time 
theretofore  or  thereafter  belong  to  the  said  C.  D.,  principal  defendant, 
but  was  then  and  there,  and  now  is,  the  property  of  one  M.  E. 

G.  E., 
Garnishee  Defendant. 
State  of  Michigan,  1 
County   of ,   C 

On  this day  of ,  in  the  year ,  before  me,  a ,  in 

and  for  said  county,  personally  appeared  G.  E.,  the  garnishee  named  in  the 
foregoing  answer,  by  him  subscribed,  and,  having  been  by  me  first  duly 
sworn,  says  that  he  has  read  (or,  heard  read)  the  said  answer,  and  knows 
the  contents  thereof,  and  that  the  same  is  true  in  substance  and  matter  of 
fact. 


(Official  title.) 

§  27.  Oral  examination  of  garnishee. 

Where  plaintiff  is  dissatisfied  with  the  disclosure,  he 
may,  instead  of  filing  interrogatories,  file  in  the  cause  a 
demand  for  the  examination  of  the  garnishee  before  the 
judge  or  a  circuit  court  commissioner  and  cause  a  copy 
of  it  to  be  served  upon  the  garnishee,  with  a  notice  re- 
quiring him  to  appear  before  the  judge  or  commissioner 
at  a  time  and  place  to  be  named  in  the  notice,  not  less 
than  three  nor  more  than  ten  days  after  service  of  the 
notice,  which  time  may  be  enlarged  by  the  judge  or  com- 
missioner on  special  cause  shown,  and  submit  to  an  ex- 
amination on  oath  concerning  all  matters  of  his  liability 
as  such  garnishee,  which  copy  must  be  served  and  sei'v- 
ice  proven,  when  required,  in  the  same  manner  as  in  cases 
of  service  of  a  declaration  in  suits  commenced  by  declara- 
tion. If  this  be  done,  the  garnishee  defendant  is  re- 
quired to  appear  and  submit  to  examination  pursuant  to 
the  notice.^* 

22,Tud.    Act,    ch.    28,    §4;    Comp. 
Laws  1915,  §  13125. 


854  Garnishment  §  27 

Such  sei'vice,  however,  can  be  made  only  in  the  county 
where  the  suit  is  brought  or  in  the  county  where  service 
has  been  made  of  a  ^vrit  of  garnishment  issued  to  some 
other  county  of  the  state  for  service  upon  a  resident  of 
such  county.^'  Moreover,  tlie  practice  of  requiring  gar- 
nishees to  submit  to  a  personal  examination  is  inappli- 
cable where  the  garnishee  is  a  non-resident ;  ^^  and  it  was 
formerly  held  not  to  be  applicable  to  foreign  corpora- 
tions,^^ but  the  present  statute  expressly  authorizes 
foreign  corporations  doing  business  in  this  state  to  be 
proceeded  against  in  this  manner  and  provides  that  serv- 
ice upon  such  a  corporation  shall  be  valid  when  made 
upon  the  resident  agent  of  the  corporation.^^  However, 
the  personal  attendance  for  examination  of  any  officer 
or  agent  of  such  foreign  corporation  not  found  within 
the  state  cannot  be  required,  but  he  may  be  personally 
examined  in  the  state  of  his  residence  in  the  same  manner 
as  depositions  are  taken  of  parties  without  the  state.^''' 

Fonn   of  Demand  for  Personal  Examination  of  Gamisliee 

(Title  of  court  and  cause  as  in  form  of  disclosure.) 

The  said  garnishee  having  heretofore  filed  his  disclosure  touching  his  lia- 
bility as  such  garnishee,  as  charged  in  the  affidavit  for  the  writ  of  garnish- 
ment herein,  comes  now  the  said  plaintiff,  by  J.  K.,  his  attorney,  and  de- 
mands an  examination  of  the  said  garnishee  before  the  Honorable  J.  S., 

23  Eaniville  v.  Kent  Circuit  Judge,  vided,  however,  That  this  section 
118  Mich.  196.  shall  not  be  construed  to  require  the 

24  Eaniville  v.  Kent  Circuit  Judge,  personal  attendance  for  examina- 
118  Mich.  196.  tion  of  any  officer,  or  agent  of  such 

25  Shafer  Iron  Co.  v.  Stone,  88  foreign  corporation  not  found  with- 
Mieh.  464.  in  this  State,  but  the  personal  ex- 

26  Jud.  Act,  ch.  28,  §  4 ;  Comp.  amiuation  of  any  officer,  or  agent 
Laws  1915,  §  13125,  which  provides,  of  such  corporation  without  this 
in  regard  to  interrogatories  and  oral  State,  may  be  had  in  the  state  of 
examination,  that  "the  provisions  his  residence,  in  the  same  manner 
of  this  section  shall  apply  to  foreign  as  depositions  are  taken  of  parties 
corporations    doing   business    within  without   the   State. ' ' 

this  State,  and  service  shall  be  valid  27  Jud.    Act,    ch.    28,    §  4 ;    Comp. 

when  made  upon  the  resident  agent      Laws  1915,  §  13125. 
of    said   foreign    corporation:     Pro- 


§  28  Garnishment  855 

circuit  judge  (or,  circuit  court  commissioner  for  said  county),  in  accordance 
with  the  statute  in  such  case  made  and  provided. 

Dated,  etc.  J-  K., 

Attorney  for  Plaintiff. 

Form  of  Notice  to  Be  Served  by  Plaintiff  Upon  Garnishee  with  Copy 
of  Demand  for  Examination  of  Garnishee 

(Title  of  court  and  cause.) 

Sir:— 

You  will  please  to  take  notice  that  the  annexed  is  a  copy  of  a  demand  for 
an  examination  of  the  said  garnishee,  now  on  file  in  this  cause,  and  that 
said  garnishee  is   required   to   appear  before  the   Honorable  J.   S.,  circuit 

judge,  at  his  chambers,  in  the  court  house,  in  the of ,  on  thq 

day  of ,  A.  D ,  at  . . o  'clock  in  the noon, 

at  which  time  and  place  to  submit  to  an  examination,  on  oath,  concerning  all 
matters  of  his  liability  as  such  garnishee. 

Dated,  etc.  '  Yours,  etc., 

J.  K., 
Attorney  for  Plaintiff. 

To  S.  K.,  Attorney  for  Garnishee. 

,  §  28.  Order  to  appear  for  examination. 

If  a  garnishee  fails  to  appear  for  examination  at  the 
time  and  place  appointed  by  a  proper  notice  to  appear, 
or  if  he  fails  or  refuses  to  file  his  answers  to  such  writ- 
ten interrogatories  as  may  have  been  filed  by  the  plain- 
tiff, or  if  his  answers  are  not  full  and  responsive  to  the 
written  interrogatories,  the  judge  of  the  court  or  a  cir- 
cuit court  commissioner,  upon  the  application  of  the 
plaintiff,  will  make  an  order  that  the  garnishee  appear 
before  him  and  submit  to  an  examination  at  a  time  and 
place  to  be  named  in  the  order.'** 

Form  of  Petition  Where  Garnishee  Fails  to  Appear  for  Examination 

(Title  of  court  and  cause.) 

To  ,  Circuit  Judge   (or  "Circuit  Court  Commissioner")   of  said 

county. 

Your  petitioner,  C.  N.,  the  plaintiff  above  named,  respectfully  shows: 
I.  That  on  the  day  of ,  191. .,  a  writ  of  garnishment  was 

duly  issued  pursuant  to  law  on  the  filing  of  an  affidavit  in  the  above  entitled 

28Jud.    Act,   eh.    28,    §4;    Comp. 
Laws  1915,  §  13125. 


856  Garnishment  §  28 

cause,  wherein was  summoned  as  garnishee  of  said ,  defendant, 

and  was  thereby  required  to  make  disclosure  concerning  his  liability  as  such 
garnishee. 

II.  That  the  said  writ  of  garnishment  was  duly  served  on  said  garnishee 

on  the day  of  ,  191 . . ,  as  shown  by  the  records  and  files  of 

said  cause. 

III.  That  said  garnishee  filed  his  disclosure  with  the  clerk  of  the  above 
named  court  on  the day  of  ,  191. .. 

IV.  That  a  demand  for  an  examination  of  said  garnishee  before , 

circuit  judge   (or  "circuit  court  commissioner"),  was  filed  in  said  cause 
on  the   day  of   ,  191 .  . . 

V.  That  a  copy  of  such  demand  was  duly  served  upon  said  garnishee 

as  appears  by  the  records  and  files  of  said  cause,  on  the   day  of 

,   191..,  together  with  a  notice  from  said  plaintiff  requiring  said 

'garnishee  to  appear  before  said  circuit  judge   (or  "circuit  court  commis- 
sioner ") ,  on  the day  of at  ....  o  'clock  in  the noon, 

at  the  ofiice  of  said  circuit  judge  (or  "circuit  court  commissioner"),  to 
submit  to  an  examination  concerning  his  liability  as  garnishee. 

VI.  That  said  garnishee  failed  and  neglected  to  appear  for  examination 
at  the  time  and  place  fixed  in  said  notice. 

Wherefore  your  petitioner  prays  that  an  order  may  be  made  requiring 
said  garnishee  to  appear  before  said  circuit  judge  (or  "circuit  court  com- 
missioner"), and  submit  to  such  examination  at  a  time  and  place  to  be 
named  in  the  order. 


Attorney  for  plaintiff.  Plaintiff. 

(Verification.) 

§  29.  Examination  to  determine  ownership  of  negotiable 
instruments. 

The  statute  provides  that  all  bills  of  exchange  and 
promissory  notes  or  other  negotiable  instruments  in  the 
hands  of  a  garnishee  at  the  time  of  the  service  of  the  writ 
of  garnishment  shall  be  deemed  effects,  within  the  mean- 
ing of  the  statute.  It  also  provides  that,  if  it  appears 
by  the  disclosure  that  the  garnishee  either  at  that  time 
or  thereafter  and  prior  to  the  disclosure,  was  indebted 
to  the  principal  defendant  by  such  a  bill,  note  or  nego- 
tiable instrument  made  payable  in  this  state,  or  the 
parties  to  which,  at  the  time  of  making  it,  resided  in  this 
state,  the  judge  or  commissioner  may  issue  a  citation 
requiring  the  principal  defendant  to  appear  before  him 
within  ten  days  and  answer  on  oath  all  interrogatories 


§  29  Garnishment  857 

respecting  the  posesssion,  transfer  or  other  disposition 
of  such  bill,  note  or  other  negotiable  instrument.  The 
citation  may  also  contain  the  name  of  any  other  person 
supposed  to  claim  an  interest  in  such  paper,  so  that  he 
may  appear  and  show  that  it  was  transferred  to  him  in 
good  faith  and  for  an  adequate  consideration  before  the 
service  of  the  writ  of  garnishment.  The  citation  may  be 
served  by  any  person  at  least  five  days  prior  to  the  return 
day,  service  shown  by  affidavit,  and  annexed  to  the  com- 
missioner's report.^® 

The  citation  should  contain  an  order  enjoining  and  re- 
straining the  principal  defendant  from  selling,  trans- 
ferring or  in  any  way  disposing  of  any  such  bill  of  ex- 
change, promissory  note  or  other  negotiable  instrument; 
and  in  case  of  any  violation  by  the  defendant  of  such 
order,  he  will  be  deemed  guilty  of  a  contempt  of  the  court 
in  which  the  action  is  pending  and  be  punishable  as  in 
other  cases  of  contempt.^" 

The  parties  cited  are  to  be  examined  in  like  manner 
as  the  garnishee,  and,  if  it  does  not  appear  that  the  note 
or  bill  was  so  transferred,  the  maker  or  acceptor  will  be 
charged  as  garnishee,  and  the  payment  of  the  judgment 
rendered  against  him  will  be  a  discharge  from  the  paper 
or  such  part  of  it  as  is  equal  to  the  amount  so  paid  by 
him,  together  with  all  costs  taxed  in  his  favor." 

If  the  principal  defendant  or  other  party  cited  re- 
fuses to  appear  upon  such  citation,  upon  the  filing  of  the 
report,  he  may  be  proceeded  against  as  for  a  contempt, 
or  brought  before  the  court  on  a  bench  warrant,  fined  in 
the  discretion  of  the  court  and  held  in  custody  until  dis- 
closure to  the  court,  which  should  be  reduced  to  writing 
by  the  clerk  and  attached  to  the  rei^iort.^^^ 

29Jud.  Act,   ch.   28,    §24;    Comp.  Laws  1915,  §13145. 

Laws     1915,     §13145;     Barnes     v.  SlJud.   Act,  ch.   28,   §25;    Comp. 

Reilly,  81  Mich.  374 ;  Smith  v.  Hoi-  Laws  1915,  §  13146. 

land,  81  Mich.  471.  32  Jud.  Act,  ch.  28,    §26;    Comp. 

30.Tud.    Act,  ch.   28,   §24;    Comp.  Laws  1915,  §13147. 


858  Garnishment  |  30 

§  30.  Disposition  and  effect  of  testimony  and  answers  of 
garnishee. 
The  testimony  given  on  the  personal  examination  of  a 
garnishee  is  required  to  be  reduced  to  writing  by  the 
commissioner  or  judge,  signed  by  the  garnishee  and  filed 
with  the  clerk  of  the  court;  and  it  and  the  answers  to 
written  interrogatories,  in  cases  where  written  interroga- 
tories are  filed  and  answered,  will  be  deemed  part  of  the 
disclosure  of  the  garnishee. ^^ 

§  31.  When  default  of  garnishee  may  be  entered  and 
judgment  rendered. 
If  the  garnishee  does  not  appear  and  file  his  disclosure 
with  the  clerk  of  the  court  on  or  before  the  return  day 
of  the  writ  of  garnishment,  or,  if  the  time  for  so  doing 
be  extended,  then  at  the  expiration  of  such  extended 
period,  or  if  special  interrogatories  be  filed  and  served, 
and  the  garnishee  does  not  file  his  answers  thereto  as 
required  by  the  notice  thereon,  or  if  demand  for  his 
examination  before  a  judge  or  a  circuit  court  commis- 
sioner be  filed  and  a  copy  served  as  provided  by  law  and 
the  garnishee  does  not  appear  and  submit  to  an  examina- 
tion as  required  by  the  notice  indorsed  thereon,  the  de- 
fault of  the  garnishee  for  want  of  appearance  and  dis- 
closure, or  for  want  of  answers  to  such  special  interroga- 
tories, or  for  want  of  appearance  and  submission  to  such 
examination,  may  be  entered  in  the  cause  and  made 
absolute  as  in  other  personal  actions;  and,  in  case  of  a 
final  judgment  against  the  principal  defendant,  judg- 
ment may  be  rendered  and  execution  issued  against  the 
garnishee,  his  goods  and  chattels,  lands  and  tenements, 
for  such  amount  as  the  plaintiff  recovers  against  the 
principal  defendant.^* 

Eefusal    to    answer    need    not    be  Laws  1915,  §  13125;  Marx  v.  Wayne 

fraudulent.      Barnes    v.    Reilly,    81  Circuit  Judge,  119  Mich.  19. 

Mich,  .374.  84Jud.    Act,    ch.    28,    §5;    Comp. 

33Jud.    Act,    eh.    28,    §4;    Comp.  Laws  1915,  §  13126. 


§  31  Gaknishment  859 

Where  the  garnishee  is  a  foreign  corporation,  if  the 
officer  or  agent  served  with  the  writ  of  garnishment, 
shall  neglect  or  refuse  to  file  disclosure  to  said  writ,  the 
default  of  said  foreign  corporation  may  be  entered  as  in 
other  cases,  and  upon  the  entry  of  judgment  against  the 
principal  defendant,  judgment  may  be  entered  in  said 
garnishee  proceedings  against  said  foreign  corporation 
for  the  amount  thereof,  including  costs:  provided,  no 
judgment  on  default  shall  be  rendered  against  said  for- 
eign corporation  until  the  expiration  of  sixty  days  after 
the  entry  of  judgment  against  the  principal  defendant, 
and  the  plaintiff  shall  within  twenty  days  after  judgment 
against  the  principal  defendant,  serve  notice  by  mail  on 
the  foreign  corporation  at  its  home  office,  that  judgment 
has  been  obtained  against  the  principal  defendant,  and 
that  at  the  expiration  of  sixty  days  from  date  of  said 
judgment  application  would  be  made  for  judgment 
against  it.^* 

An  affidavit  of  default  is  not  ob-  Form  of  Notice  as  Prescribed  by 

jectionable    because    it    states    that  Statute 

the   garnishee   failed   to  appear   for  In  the  circuit  court  for  tlie  county 

examination     before     the     '  *  court "      of   

instead  of  before  the  ' '  circuit  judge       ,  plaintiff, 

at   his    office"    as    required   by   the  vs. 

order.     Nichol  v.  Nevers,  196  Mich ,  defendant. 

203.  ,   garnishee   defendant. 

Where  the  garnishee  fails  to  obey  To  said  garnishee  defendant: 

an  order  to  appear  for  examination,  Take   notice,   that  on  the    

judgment  by  default  may  be  entered       day  of Anno  Domini 

against  him  on  motion  without  giv-       judgment    for    the    sum    of    

ing  him  notice  of  the  default  or  the  dollars  including  costs,  was  entered 

assessment    of    damages;    and   it    is  in     said    court    against    the    above 

immaterial   that  he  had  filed  a  dis-  named   principal   defendant,   and   at 

closure.       Nichols     v.     Nevers,     196  the    expiration    of    sixty   days    from 

Mich.  203.  the   entry   of   said   judgment,  appli- 

36  Jud.   Act,  ch.  28,    §46;    Comp.  cation   will   be  made   to   said   court 

Laws    1915,    §  13167,    amended    by  for  the  entry  of  judgment  against 

Pub.  Acts  1919,  No.  233.  you  as  garnishee  defendant  in  said 

cause. 

Yours,  etc., 

> 

Plaintiff's  Attorney. 


860  Garnishment  §  31 

It  is  a  general  rule  that  the  right  of  the  plaintiff  to 
examine  the  garnishee  may  not  be  exercised  in  disregard 
of  the  privileges  which  would  belong  to  the  garnishee 
if  he  were  examined  as  a  witness  on  an  ordinary  trial, 
and,  where  such  a  privilege  obtains,  the  default  of  the 
garnishee  for  not  answering  cannot  regularly  be  entered. 
Thus,  when  a  wife  is  sought  to  be  charged  as  garnishee 
of  her  husband  for  property  which  it  is  alleged  she  holds 
by  a  conveyance  void  as  to  the  creditors  of  her  husband, 
she  cannot  be  examined  by  the  plaintiff  without  the  con- 
sent of  her  husband  in  regard  to  the  transfer  of  such 
property,  and  her  default  for  refusing  to  submit  to  such 
examination  cannot  be  regularly  entered,  and,  if  entered, 
will  be  set  aside  by  the  court  on  motion.^^ 

Defaults  against  garnishee  defendants  may  be  set 
aside  for  any  cause  for  which  defaults  for  want  of  ap- 
pearance and  plea  may  be  set  aside,  upon  such  terms  as 
the  court  shall  impose.''  A  default  regularly  filed  can- 
not be  set  aside  upon  an  application  made  more  than  six 
months  afterwards.^' 

§  32.  Protective  force  of  judgment. 

An  intended  garnishee  cannot  bind  the  principal  de- 
fendant by  a  waiver  of  regular  and  valid  service  upon 
him  of  the  writ  of  garnishment.  If,  without  such  service, 
he  voluntarily  submits  himself  to  the  jurisdiction,  the 
garnishment  proceeding  will  afford  no  protection  to  him 
against  the  urging  of  his  claim  by  the  principal  defend- 

86  Berks  v,  Adsit,  102  Mich,  495 ;  This   rule    does   not   apply   where 

Morgan  v.  Sprague,  124  Mich.   131.  default      is      improperly      rendered. 

37Jud.    Act,    ch.    28,    §5;    Comp.  Petley  v.  Wayne  Circuit  Judge,  124 

Laws  1915,  §  13126;  Nichol  v.  Nev-  Midi.  14,  followed  McCain  v.  Wayne 

ers,  196  Mich.  203.  Circuit  Judge,  187  Mich.  73;  W.  H. 

38Cir.    Ct.    Eule    32,    §4;    Caille  Warner    Coal    Co.    v.    Nelson,    204 

Bros.  Co.  V.  Saginaw  Circuit  Judge,  Mich.  317, 
155  Mich,  480. 


§  33  Garnishment  861 

ant.  The  right  of  the  principal  defendant  can  only  be 
bound  without  his  consent  when  a  real  service  is  effected 
in  some  form  by  which  his  right  is  attached;  but,  when 
such  service  is  effected,  the  garnishee  need  not  wage 
battle  at  every  step.  The  law  not  only  recognizes  his 
right  to  suffer  default,  but  provides  what  the  practice 
shall  be  in  such  case,  and  invests  the  judgment  with  the 
same  protective  force  as  it  does  one  awarded  after  a 
vigorous  contest.^® 

§33.  Default  judgment  against  garnishee  after  de- 
fault of  principal  defendant. 

The  Judicature  Act  provides  that  if  plaintiff  obtains 
judgment  against  the  principal  defendant  and  the  latter 
does  not,  within  two  days,  serve  upon  the  garnishee  notice 
of  motion  for  new  trial  or  of  his  intention  to  remove  the 
case  to  the  supreme  court,  the  statutory  issue  shall  stand 
for  trial  at  that  term  of  the  court.*"  Thereunder  it  has 
been  claimed  that  after  judgment  against  the  principal 
defendant,  where  the  garnishee  is  also  in  default,  plain- 
tiff may  proceed  at  once  to  judgment  against  the  gar- 
nishee defendant  unless  objection  is  made.  But  it  is  held 
that  where  the  ganiishee  failed  to  appear  or  consent,  the 
want  of  appearance  did  not  waive  his  right  to  insist  upon 
the  provisions  of  the  statute  being  complied  with;  that 
the  judgment  against  the  garnishee  entered  before  the 
end  of  two  days  was  premature  and  invalid;  that  a  joint 
judgment  against  the  principal  defendant  and  the  gar- 
nishee is  unauthorized;  and  that  a  motion  by  the  gar- 
nishee to  set  aside  the  default  judgment  was  not  too  late 
because  not  made  within  six  months." 

39HebPl   V.   Amazon  Ins.   Co.,  33  40Jucl.   Act,  ch.   28,   §13;    Comp. 

Mich.    400;     Kcppel    v.    Moore,    66  Laws  1915,  §  13134. 

Mich.  292 ;  Chamberlain  v.  Wallace,  41  W.  H.  Warner  Coal  Co.  v.  Nel- 

176     Mich.      609;      Lichtenberg     v.  son,  204  Mich.  317. 
Wayne  Circuit  Judge,  106  Mich.  38. 


862  Garnishment  §  34 

V.  Statutory  Issue 

§  34.  How  formed. 

The  affidavit  for  the  writ  of  garnishment  will  be  held 
and  considered  as  a  declaration  by  the  plaintiff  against 
the  garnishee  as  defendant,  and  upon  the  filing  of  the 
disclosure,  or  upon  the  filing  of  the  answers  to  written 
interrogatories  in  cases  where  they  are  required  and 
filed,  or  upon  the  filing  of  the  report  of  the  testimony  or 
statement  made  by  the  garnishee  on  his  personal  ex- 
amination in  cases  where  such  examination  is  had,  the 
matter  of  the  affidavit  will  be  considered  as  denied,  ex- 
cept so  far  as  it  is  admitted  by  the  disclosure,  answers 
to  interrogatories  or  report,  which  admission  will  have 
the  effect  of  admissions  in  a  plea  and  also  will  be  con- 
sidered prima  facie  evidence  of  the  matters  admitted. 
Thereupon  a  statutory  issue  will  be  deemed  framed  for 
the  trial  of  the  question  of  the  garnishee's  liability  to 
the  plaintiff." 

When  two  or  more  persons  severally  liable  have  been 
made  garnishees  by  means  of  a  single  affidavit  for  that 
purpose,  the  affidavit  will  stand  as  a  declaration  against 
each  of  them.*' 

§  35.  Demand  for  trial  of  issue. 

If  the  plaintiff  or  the  garnishee  defendant,  within  ten 
days  after  filing  the  disclosure,  answers  or  statement, 
files  with  the  clerk  of  the  court  a  demand  for  the  trial 
of  the  cause,  the  cause  will  stand  for  trial  in  the  manner 
provided  by  the  statute.  The  time  for  filing  the  demand 
may  be  extended  by  the  court  upon  application  and  show- 
ing." The  garnishee  is  entitled  to  ten  days  in  which  to 
demand  a  trial  of  the  issue  and  consequently  a  judgment 

42Jud.   Act,   ch.   28,    §11;    Comp.  44  Jud.   Act,   ch.   28,    §11;    Comp. 

Laws  1915,  §  13132,  Laws  1915,  §  13132;  Muncey  v.  Sun 

43  State  Sav.  Bank  v.  Hosmer,  95  Ins.  Office,  109  Mich.  542. 
Mich.  100. 


§  36  Garnishment  863 

cannot  be  entered  against  him  until  that  time  has  ex- 
pired." 

Form  of  Demand  for  Trial  of  Statutory  Issue 

(Title  of  court  and  cause.) 

Comes  now  the  said  plaintiff  (or,  garnishee)  by  J.  K.,  his  attorney,  and 
demands  a  trial  of  the  statutory  issue  between  the  said  plaintiff  and  the 
said  garnishee  in  the  above  entitled  cause. 
Dated,  etc. 

J.  K., 
Attorney  for  Plaintiff   (or  Garnishee.) 

§  36.  Trial  of  issue. 

In  case  judgment  has  been  rendered  in  favor  of  the 
plaintiff  in  the  principal  action  before  the  framing  of  the 
statutory  issue,  such  issue  may  be  brought  on  for  trial  in 
the  same  manner  as  a  personal  action.*® 

If  the  plaintiff  has  not  recovered  judgment  in  the  prin- 
cipal action,  then  the  statutory  issue  will  stand  for  trial 
at  the  term  at  which  the  issue  against  the  principal  de- 
fendant is  tried  and  finally  disposed  of,  and,  if  the  latter 
issue  is  determined  against  the  plaintiff  at  any  time 
thereafter,  upon  motion  of  the  garnishee,  judgment  will 
be  entered  in  his  favor  upon  the  statutory  issue  and  for 
costs  against  the  plaintiff,  reciting  the  framing  of  such 
issue  and  the  judgment  in  favor  of  the  principal  defend- 

46  King    V.    Harrigan,    145    Mich.  the  disclosure,  without  regard  as  to 

436.  whether    he    has    himself    filed    such 

After  the  ten  days,  where  no  de-  a  demand.    Fearey  v.  Cummings,  41 

mand    for    a    trial    is    filed    by    the  Mich.  376. 

garnishee,  and  the  oral  examination  A  demand  for  a  trial  of  issues  as 

shows  the  liability  of  the  garnishee,  against  a  garnishee  is  not  necessary 

judgment  may  be  rendered  against  where  the  disclosure  is  accepted  as 

the    garnishee    on    motion    without  true,     and     the     only     question     is 

notice  to  him.     Heald  v.  Montcalm  whether    the    fund    belongs    to    the 

Circuit  Judge,  166  Mich.  297.  principal  defendant  or  to  the  inter- 

If   the   garnishee   files   a   demand  vener.     Muncey   v.   Sun   Ins.   Office, 

for  trial,  plaintiff  may  take  advan-  109  Mich.  542. 

tage  thereof  as  well  as  the  garnishee  46  Jud.   Act,  ch.   28,   §12;    Comp. 

and  may  show  liability  on  the  part  Laws  1915,  §  13133. 
of    the    garnishee    not    admitted    in 


864  Garnishment  §  36 

ant;*''  but,  if  the  plaintiff  obtains  judgment  against  the 
principal  defendant,  and  the  latter  does  not  within  two 
days  thereafter  serve  upon  the  garnishee  notice  of  a  mo- 
tion for  a  new  trial  or  of  his  intention  to  remove  the 
cause  to  the  supreme  court,  the  statutory  issue  will  stand 
for  trial  at  any  time  thereafter  the  same  as  in  other 
cases."  And  whenever,  in  case  of  a  recovery  by  the 
plaintiff  against  the  principal  defendant,  he  has  removed 
the  cause  to  the  supreme  court  and  the  judgment  has 
been  affirmed,  the  statutory  issue  in  garnishment  will 
stand  for  trial  at  any  time  thereafter  the  same  as  in  other 
cases." 

The  garnishment  statute  contemplates  speedy  proceed- 
ings. Its  necessary  operation  is  to  tie  the  hands  of  the 
garnishee  and  subject  him  to  expense  and  annoyance.  It 
cannot  be  regarded  as  a  proceeding  in  the  ordinary  course, 
for  it  involves  many  consequences  which  could  not  other- 
wise arise  in  an  ordinary  suit  either  at  law  or  in  equity. 
If  these  proceedings  could  be  delayed  indefinitely,  it 
might  not  only  injure  the  garnishee,  but  also  affect  other 
persons  who  have  claims  on  property  in  his  hands.  It  is, 
therefore,  the  right  of  a  garnishee  to  have  the  proceed- 
ings on  the  statutory  issue  disposed  of  as  the  statute  pro- 
vides it  shall  be,  and  the  cause  cannot  be  kept  open 
longer  without  either  a  regular  continuance  or  the  ex- 
press or  implied  consent  of  the  garnishee.^"     The  gar- 

47  Jud.  Act,  ch.  28,  §12;  Comp.  which  judgment  in  the  principal 
Laws  1915,  §  13133.  suit  was  rendered  does  not  require 

48  Jud.  Act,  ch.  28,  §13;  Comp.  its  dismissal  in  the  supreme  court 
Laws   1915,   §  13134.  where  there  is  nothing  in  the  record 

49  Jud.  Act,  ch.  28,  §17;  Comp.  to  show  that  it  was  not  continued 
Laws  1915,  §  13138.  over  the  term  by  consent  or  on  cause 

50  Blake  v.  Hubbard,  45  Mich.  1.  shown.  Old  Second  Nat.  Bank  v. 
See    also    Crippen    v.    Fletcher,    56  Williams,  112  Mich.  564. 

Mich.   386;    Old   Second   Nat.   Bank  But    where    garnishment    proceed- 

V.  Williams,  112  Mich.  564.  ings   were   allowed   to   rest   for   two 

Failure  to  bring  on   the  garnish-  years,  without  a  formal  continuance 

ment  issue  for  trial  at  the  term  at  or  any  action  equivalent  to  consent 


§37 


Garnishment 


865 


nisliee  may  waive  his  right  to  have  the  statutory  issue 
tried  at  the  same  term  at  which  judgment  is  rendered 
against  the  principal  defendant.^^ 

§37.  Evidence. 

Upon  the  trial  of  the  statutory  issue,  which  is  solely 
between  the  plaintiff  and  the  garnishee,^^  the  report  or 
any  other  competent  evidence  supporting  or  controvert- 
ing it  may  be  offered  by  the  plaintiff,  and  the  garnishee 
may  offer  any  evidence  not  controverting  the  disclosure, 
or,  in  the  discretion  of  the  court,  he  may  be  allowed  to 
show  errors  and  mistakes  in  his  disclosure,  and  may  also 
show  the  amount  of  the  judgment  and  costs  against  the 
principal  defendant."  Upon  the  trial  of  the  issue,  the 
plaintiff  must  show,  by  means  of  the  garnishee's  dis- 
closure and  his  answers  to  special  interrogatories  and 
upon  personal  examination,  and  by  whatever  other  com- 


by  the  garnishee,  they  will  be 
deemed  to  have  been  abandoned. 
Blake  v.  Hubbard,  45  Mich.  1. 

SlCluett  V.  Eosenthal,  100  Mich. 
193 ;  Meigs  v.  Weller,  90  Mich.  629. 

The  garnishee  waives  his  right  to 
have  the  statutory  issue  tried  at  the 
same  term  judgment  is  rendered 
against  the  principal  defendant  by 
consenting  that  the  case  stand  from 
day  to  day  and  not  he  taken  up  for 
trial  before  a  day  specified.  Meigs 
V.  Weller,  90  Mich.  629. 

So,  under  the  old  procedure,  where 
plaintiff  noticed  the  cause  for  trial 
at  two  succeeding  terms  but  coun- 
termanded the  notice,  the  act  of 
the  garnishee's  attorney  in  apply- 
ing for  and  obtaining  an  attorney 
fee  as  costs  of  the  continuance  was 
a  waiver  of  the  delay.  Kicly  v. 
Bertrand,  67  Mich.  332. 

B2Keppel  v.  Moore,  66  Mich.  292, 
where  it  is  held  that  subsequent 
attaching  or  garnishing  creditors 
1  Abbott— 55 


should  not  be  allowed  to  intervene 
as  parties  to  the  proceedings.  See 
also  Muneey  v.  Sun  Ins.  Office,  109 
Mich.  542. 

63Jud.  Act,  ch.  28,  §14;  Comp. 
Laws  1915,  §  13135.  In  First  Nat. 
Bank  v.  Mellen,  45  Mich.  413,  a 
judgment  which  had  been  rendered 
against  a  garnishee  who  disclosed  an 
indebtedness  to  the  principal  de- 
fendant was  vacated  by  the  court 
when  it  appeared,  on  motion  to  va- 
cate it,  that  the  disclosure  was  in- 
correct in  that  the  indebtedness  dis- 
closed was  to  a  third  person  instead 
of  to  the  principal  defendant. 

The  written  examination  of  the 
garnishee,  signed  by  him,  is  evidence 
against  him  on  the  trial.  Newell  v. 
Blair,  7  Mich.  103.  And  the  gar- 
nishee may  show  that  a  disclosure 
made  by  him,  as  taken  down  in  the 
minutes  and  signed  by  the  garnishee, 
was  not  the  disclosure  actiially  made. 
Siithoiland  v.  Riirrill,  82  Mich.   13. 


866  Garnishment  §  37 

petent  evidence  is  necessary  for  the  purpose,  that,  at  the 
time  of  the  making  of  the  affidavit  and  of  the  service  of 
the  writ  of  garnishment  upon  the  garnishee,  the  facts 
upon  which  it  is  sought  to  charge  the  garnishee  existed 
as  alleged  in  the  affidavit.  And,"  where  the  garnishee  is 
to  be  charged  for  having  in  his  possession  property  be- 
longing to  the  principal  defendant  or  conveyed  by  him  in 
fraud  of  creditors,  there  should  be  proof  of  the  value  of 
the  propertj^"  The  fact  of  the  recovery  of  judgment  by 
the  plaintiff  against  the  principal  defendant  should  be 
proved  to  show  that  a  stage  of  the  proceedings  has  been 
reached  which  entitles  the  plaintiff  to  proceed  to  judg- 
ment in  the  garnishee  suit,  and  to  fix  the  limit  of  re- 
covery against  the  garnishee.  And,  as  the  garnishee  pro- 
ceeding is  ancillary  to  the  principal  suit,  and  the  pend- 
ency of  the  latter  is  therefore  before  the  court,  the  fact 
of  the  recovery  of  judgment  against  the  principal  de- 
fendant may  be  shown  by  the  judgment  entry  merely." 

VI.  Claims  of  Third  Persons 

§  38.  Procedure  in  g"eneral. 

When  the  answer  of  a  garnishee  declares  that  some 
person  other  than  the  principal  defendant  claims  all  or  a 
part  of  the  indebtedness  or  property  in  his  hands  and 
specifies  the  name  and  residence  of  such  claimant,  the 
court  may,  on  motion,  order  that  such  claimant  be  in- 
terpleaded as  a  defendant  to  the  garnishee  action  and 
that  notice  thereof,  setting  forth  the  fact,  with  a  copy  of 
the  order,  in  such  form  as  the  court  directs,  be  served 
upon  him.  After  such  service  has  been  made,  the  gar- 
nishee may  pay  or  deliver  the  indebtedness  or  property 

64  Bethel  v.   Linn,   63   Mich.   464;  56  Farrington  v.  Sexton,  43  Mich, 

Krementz     v.     Howard,     109     Mich.       454;     Strong    v.    Hollon,    39    Mich. 
466;  Ferry  v.  Home  Sav.  Bank,  114       411. 
Mich.    321;     Keppel    v.    Moore,    66 
Mich.  292. 


§  38  Garnishment  867 

to  the  clerk  of  the  court  and  have  a  receipt  therefor, 
which  will  be  a  complete  discharge  from  all  liability  to 
any  party  for  the  amount  so  paid  or  the  property  so  de- 
livered.^^ But  the  right  of  the  plaintiff  to  try  the  title 
to  an  indebtedness  or  property  disclosed  by  the  garaishee 
and  claimed  by  a  person  other  than  the  principal  defend- 
ant extends  to  any  case  where  the  disclosure  or  the  an- 
swers to  special  interrogatories  or  upon  personal  exam- 
ination of  the  garnishee  show  such  claim,  and  that  right 
cannot  be  cut  off  by  the  failure  of  the  garnishee  to  pay 
or  deliver  the  money  or  property  into  court.^''' 

Upon  such  a  disclosure,  the  garnishee  has  no  further 
interest  in  the  proceedings  except  to  have  the  right  as  be- 
tween the  claimant  and  the  principal  defendant  deter- 
mined; and,  where  the  disclosure  is  accepted  as  true 
except  as  to  the  claim  of  such  third  party,  there  is  no 
necessity  or  propriety  in  demanding,  as  against  the  gar- 
nishee, a  trial  of  this  question.^^ 

Such  notice  may  be  served  within  or  without  the  State 
of  Michigan  by  any  competent  person  and  proof  of  serv- 
ice should  be  filed  with  the  clerk  of  the  court  where  the 
garnishee  proceedings  are  commenced.  If  personal  sei^^- 
ice  cannot  be  had,  then  such  service  must  be  made  as 
the  court  directs.*® 

66Jud.   Act,   ch.   28,    §28;    Comp.  57  Marx   v.  Wayne  Circuit   Judge, 

Laws  1915,  §  13149;   Bryant  v.  Wil-  119  Mich.  19. 

cox,  137  Mich.  669;  Keister  v.  Dono-  58  Muncey  v.  Sun  Ins.   Office,  109 

van,  173  Mich.  328.  Mich.  542. 

If  a  partnership  is  summoned  in  as  59  Jud.   Act,  ch.   28,   §  28;    Conip. 

a  claimant  and  it  is  found  that  the  Laws  1915,  §  13149;   Muncoy  v.  Sun 

fund  belongs  to  it,  the  fund  cannot  Ins.  Office,  109  Mich.  542;  Pecard  v. 

be  awarded  to  plaintiff  on  the  theory  Home  &  Co.,  91  Mich.  346;  Stone  v. 

that  the  partnership  had  not  jtroj)-  Dowling,  119  Mii-h.  476. 

crly    registered    under    the    statute,  Faihire  to  give  notice  of  apjdica- 

since  the  partnership  was  not  volun-  tion  to  defendant  does  not  make  or- 

tarily  in  court  nor  asking  affirmative  der  "void."     Marx  v.   Wayne   Cir- 

relief.      Robbins    v.    Vandermeiden,  cuit  Judge,  119  Mich.   19. 
182  Mich.  674. 


868  Garnishment  §  39 

§  39.  Position  of  claimant  when  served. 

Upon  service  being  made  and  proof  of  service  filed  in 
the  cause,  the  claimant  will  be  deemed  a  defendant  to 
the  garnishee  action,  and,  within  twenty  days,  must  an- 
swer. In  his  answer,  he  may  set  forth  his  claim  or  any 
defense  which  the  garnishee  might  have  made.  In  case 
of  default,  judgment  may  be  rendered  and  will  conclude 
any  claim  upon  the  part  of  such  defendant.^® 

§  40.  Issue,  trial  and  judgment. 

For  the  purpose  of  trying  the  title  as  between  the 
plaintiff  and  any  defendant  or  defendants,  and  between 
two  or  more  defendants,  so  interpleaded,  to  the  money, 
property  or  indebtedness  paid  or  delivered  by  the  gar- 
nishee to  the  clerk,  the  court  may  order  an  issue  to  be 
formed  and  may  proceed  to  try  it  or  direct  the  trial  of 
it  by  a  jury  as  in  other  cases. ®^  On  such  trial,  the  de- 
fendant so  interpleaded  has  the  burden  of  proof  of  es- 
tablishing his  claim.^^  The  issue  may  be  in  the  form 
provided  for  the  statutory  issue  between  the  plaintiff 
and  garnishee  already  explained,  and  the  judgment  or 
judgments  entered  therein  w^ill  have  the  same  force  and 
effect  as  in  suits  between  the  same  parties  relative  to 
the  same  subject-matter.^' 

The  judgment  against  the  claimant  cannot  take  the 
forai  of  a  money  judgment,  but  is  intended  to  be  one 
which  sliall  be  conclusive  between  the  parties  as  to  the 
claim,  and,  if  against  the  claimant,  shall  extinguish  his 

eojud.   Act,   ch.   28,   §28;    Comp.  eijud.   Act,   ch.    28,    §28;    Comp. 

Lawa  1915,   §13149.  Laws  1915,  §13149. 

Claimant    becomes    a    party    with  62  Jackson  v.  People 's  Sav.  Bank, 

same   duties   and   responsibilities   as  120   Mich.   702;    Burnham   v.   Home 

its  assignor  or  the  principal  defend-  Ins.    Co.,    119   Mich.    588;    Kahn   v. 

ant.     Citizens'  Bank  of  Rudyard  v.  Minthorn,  178  Mich.  312. 

Chippewa  Circuit  Judge,   186  Mich.  63  Jud.   Act,   ch.   28,   §28;    Comp. 

494.  Laws  1915,  §  13149. 


§  41  Garnishment  869 

claim  to  the  indebtedness  or  property  disclosed  by  the 
garnishee.  When  the  claim  is  so  extinguished,  the 
plaintiff  is  then  in  the  same  position  that  he  would  have 
been  if  no  person  other  than  the  principal  defendant  had 
claimed  the  indebtedness  or  property,  and  must  proceed 
to  judgment  against  the  garnishee  defendant  as  in  or- 
dinary cases.^* 

§  41.  Importance  of  summoning  in  claimants. 

A  plaintiff  cannot  subject  indebtedness  or  property 
in  which  persons  not  parties  to  the  garnishment  pro- 
ceedings may  have  a  substantial  interest  to  the  satis- 
faction of  his  claim  against  the  principal  defendant  un- 
til such  persons  are  in  some  manner  brought  before  the 
court.  When,  therefore,  the  disclosure  of  the  garnishee 
shows  that  other  persons  claim  an  interest  in  the  prop- 
erty or  indebtedness  disclosed,  it  becomes  incumbent 
upon  the  plaintiff  to  summon  in  such  persons  in  order 
that  they  may  have  their  day  in  court  and  be  given  an 
opportunity,  if  they  can  and  will,  to  establish  thoir 
claims.  If  the  plaintiff  does  not  do  this,  but  leaves  it 
doubtful  whether,  on  account  of  such  claims,  the  prop- 
erty or  indebtedness  disclosed  is  really  such  that  he  is 
entitled  to  appropriate  it  to  the  satisfaction  of  his  de- 
mand against  the  principal  defendant,  he  will  not  be 
allowed  so  to  appropriate  it.  He  must  make  out  a  clear 
and  unequivocal  case.  He  will  not  be  permitted  to  sub- 
ject property  or  indebtedness  so  long  as  there  is  any- 
thing before  the  court  which,  while  uncontroverted,  in- 
dicates that  some  person  not  before  the  court  has  or 
may  have  some  substantial  interest  which  would  be 
thereby  affected.^^ 

64  Pceard  v.  Home  &  Co.,  91  Mich.  66  Kennedy  v.  McLcllan,  76  Mich. 

346;  Stone  v.  Dowling,  119  Mich.  598;  Lyon  v.  Ballentinc,  63  Mich. 
476.  97;  Smith  v.  Holland,  81  Mich.  471. 


870  Garnishment  §  41 

Form  of  Motion  by  Plaintiff  for  Order  to  Interplead  Claimant  of  Prop- 
erty or  Indebtedness  Disclosed  by  Garnishee 

(Title  of  court  and  cause.) 

Comes  now  the  said  plaintiff,   by  J.  KL,  his  attorney,  and  moves  the 

court  now  here  to  grant  an  order  that  O.  P.,  of  the   of   ,  in 

said  county,  be  interpleaded  as  a  defendant  to  the  above-entitled  garnishee 
action,  for  the  following  reason,  to  wit: 

1.  It  appears  by  the  disclosure  of  the  said  garnishee  now  on  file  in 
this  cause  that,  at  the  time  of  the  service  of  the  writ  of  garnishment 
herein,  he,  the  said  garnishee,  had  in  his  hands  and  under  his  custody  and 
control  certain  goods  and  chattels  belonging  to  the  said  C.  D.,  principal 
defendant,  and  that  he,  the  said  garnishee,  was  indebted  to  the  said  C.  D., 

and  that  the  said  O.  P.,  who,  said  disclosure  declares,  resides  in  the 

of ,  aforesaid,  claims  the  said  property  and  indebtedness. 

This  motion  is  based  upon  the  record  in  this  cause,  and  upon  the  affidavit 
of  E.  P.,  now  on  file  herein. 

Dated,  etc. 

J.  K., 
Attorney  for  Plaintiff. 

Form  of  Order  for  Interpleading  Claimant  of  Property  or  Indebtedness 
Disclosed  by  Garnishee 

(Title  of  court  and  cause.) 

It  appearing  from  the  disclosure  of  the  garnishee  in  this  cause  that,  at 
the  time  of  the  service  upon  him,  the  said  garnishee,  of  the  writ  of  garnish- 
ment herein,  he,  the  said  garnishee,  had  in  his  hands  and  under  his  custody 
and  control  the  following  goods  and  chattels:  (Here  describe  the  property,) 
belonging  to  the  said  C.  D.,  and  was  indebted  to  the  said  C.  D.,  and  that 

said  property  and  indebtedness  are  claimed  by  O.  P.,  of ;  on  motion 

of  J.  K.,  attorney  for  plaintiff,  it  is  ordered  that  the  said  O.  P.  be  inter- 
pleaded as  a  defendant  to  the  above-entitled  garnishee  action,  and  that 
notice  hereof,  with  a  copy  of  this  order,  be  served  upon  the  said  O.  P.  without 
delay,  to  appear  in  this  cause  within  twenty  days  after  service  upon  him  of 
notice  of  this  order,  and  answer,  setting  forth  his  claims,  if  any  he  have,  to 
the  said  property  or  the  said  indebtedness,  or  any  part  thereof,  or  his  de- 
fense, if  any,  to  this  action. 

J.  S., 
Circuit  Judge. 

Form  of  Notice  to  Be  Served  Upon  Claimant  of  Property  or  Indebtedness 

(Title  of  court  and  cause.) 
To  O.  P.: 

You  will  please  to  take  notice  that  the  disclosure  of  G.  R.,  the  above- 
named  garnishee,  now  on  file  in  this  cause,  declares  that,  at  the  time  of  the 
service  upon  him  of  the  writ  of  garnishment  herein,  he,  the  said  garnishee, 


§  42  Garnishment  871 

had  in  his  hands  and  under  his  custody  and  control  the  following  goods 
and  chattels:  (Describe  them,)  belonging  to  the  said  C.  D.,  principal  de- 
fendant, and  was  indebted  to  the  said  C.  D.  in  the  sum  of dollars; 

and,  further,  that  you  reside  in  the of ,  in  said  county  (or  as 

the  case  may  be),  and  claim  the  said  property  and  indebtedness  (or  as  the 
case  may  be). 

You  will  also  please  to  take  notice  that  the  annexed  is  a  copy  of 
an  order  this  day  entered  in  said  cause,  and  that  you  are  required,  within 
twenty  days  after  service  of  notice  hereof  and  of  a  copy  of  said  order  upon 
you,  to  appear  in  this  cause  and  answer,  setting  forth  your  claim,  if  any  you 
have,  to  the  said  property  and  indebtedness,  or  any  part  thereof,  or  your 
defense,  if  any,  to  said  action. 
Dated,  etc. 

Yours,  etc., 

J.  K., 
Attorney  for  Plaintiff. 
Business  address: 

,  Mich. 

VII.  Discontinuance  or  Dismissal 

§  42.  In  gceneral. 

Proceedings  in  garnishment  being  entirely  ancillary 
to  the  principal  suit,  a  failure  of  the  plaintiff  to  recover 
judgment  against  the  principal  defendant,  or  a  satis- 
faction in  any  manner  of  a  judgment  which  he  has  ob- 
tained, will  operate  as  a  discontinuance  of  all  proceed- 
ings against  the  garni shee,^^  but,  where  the  principal 
defendants  are  a  firm,  a  verdict  discharging  one  of  the 
partners  because  he  is  an  infant  does  not  release  the  gar- 
nishee, who  would  be  fully  protected  as  against  the  firm 
by  paying  a  judgment  against  him,  for  the  infant 
could  not  individually  sue  the  garnishee  for  firm  prop- 

66Jud.   Act,   ch.   28,    §41;    Conip.  tiff  assigns  his  claim  to  a  third  per- 

Laws  1915,  §  13162.  son    and    the    garnishee    pays    such 

If     the     garnishee,     after     being  third    person.      Burnham    v.    Home 

served    with    the    garnishment    writ,  Ins.    Co.,   119   Mich.    588.     But  the 

pays  the  debt  or  delivers  the  prop-  garnishee  cannot  escape  liability  by 

erty  to  the  principal  defendant  or  to  reason  of  a  payment  to  one  not  en- 

a    third    person,   he    does    so   at   his  titled  to  the  money.     Sykes  v.  City 

peril.       However,     the     garnishment  Sav.  Bank,  115  Midi.  .'^21. 
proceedings  are  abated  where  plain- 


872  Gaenishment  §  42 

erty.®'  If  a  judgment  recovered  by  the  plaintiff  is  sub- 
sequently set  aside,  the  garnishment  proceedings  fall 
to  the  ground  therewith.^'  And  as,  in  all  cases  where 
the  principal  defendant  does  not  appear  in  the  cause 
within  the  time  fixed  by  the  statute  and  rules  of  court, 
it  is  incumbent  upon  the  plaintiff  to  proceed  and  per- 
fect his  judgment  against  the  principal  defendant  as 
soon  as  he  is  entitled  thereto,  if  he  fails  to  do  so,  the 
court  may,  in  its  discretion,  on  motion  of  the  garnishee 
or  any  one  interested  in  the  proceedings,  render  judg- 
ment discontinuing  the  garnishee  proceedings,  with 
costs  against  the  plaintiff.^'  So,  if  the  plaintiff  fails  to 
bring  in  the  principal  defendant  within  the  time  al- 
lowed therefor,  the  court  may,  in  its  discretion,  on  the 
motion  of  the  garnishee,  dismiss  the  garnishment  pro- 
ceedings, although  at  the  time  the  plaintiff  may  be,  by 
means  of  alias  and  pluries  writs,  using  every  effort  to 
reach  the  principal  defendant.  The  garnishee  cannot, 
without  his  own  consent  or  waiver,  be  subjected  to  any 
unreasonable  delay  on  the  part  of  the  plaintiff,  whether 
wilful  or  unavoidable,  to  prosecute  his  suit  to  a  temii- 
nation.'"  But  garnishees  are  not  discharged,  nor  are  the 
proceedings  against  them  discontinued,  by  any  change 
in  the  record  of  the  principal  case  resulting  from  the 
death  of  a  joint  defendant.'''^  The  death  of  the  garnishee 
abates  the  proceeding.'''^ 

§  43.  On  giving  bond. 

By  statute,'''^  the  principal  defendant  in  any  action  in 
which  process  of  garnishment  has  been  issued  may,  at 

67  Bethel    v.    Chipman,    57    Mich.  70  Noble  v.  Bourke,  44  Mich.  193 ; 

379.  Blake  v.  Hubbard,  45  Mich.  1. 

68Withington    v.    Southworth,    26  71  Bethel    v.    Chipman,    57    Mich. 

Mich.     381;      Segar     v.     Muskegon  379. 

Shingle  &  Lumber  Co.,  81  Mich.  344;  72  White    v.    Ledyard,    48    Mich. 

Iron  Cliffs  Co.  v.  Lahais,  52  Mich.  264. 

394.  73Jud.   Act,  ch.   28,    §44;    Comp. 

69Jud.   Act,   ch.   28,   §45;    Comp.  Laws     1915,     §13165;     People     v. 

Laws  1915,  §  13166.  Wayne  Circuit  Judge,  26  Mich.  186. 


§  43  Gaknishment  873 

any  time  after  service  of  such  process  and  previous  to 
the  rendering  of  judgment  thereon,  file  with  the  clerk 
of  the  court  his  bond,  with  at  least  two  sufficient  sure- 
ties, to  the  plaintiff  as  obligee,  in  a  penal  sum  equal  to 
double  the  amount  of  the  claim  of  the  plaintiff  as  sworn 
to  in  the  affidavit  filed  for  the  writ  of  garnishment,  with 
condition  to  pay  any  judgment  obtained  against  the  de- 
fendant or  defendants  in  the  action  and  abide  the  order 
of  the  court  therein. 

This  bond  and  the  sureties  must  be  previously  ap- 
proved by  the  judge  of  the  court  or  circuit  court  com- 
missioner, on  a  notice  of  at  least  twenty-four  hours  to 
the  plaintiff  or  his  attorney  of  the  time  and  place  of 
presenting  the  bond  for  approval;  and,  if  neither  the 
plaintiff  nor  his  attorney  resides  in  the  city,  village  or 
township  where  the  bond  is  to  be  presented  for  approval, 
such  notice  must  be  a  notice  of  at  least  four  days,  and 
at  least  one  day  must  be  added  for  each  additional  one 
hundred  miles  or  fraction  thereof  of  distance.  The 
judge  or  commissioner  is  required  to  examine  the  de- 
fendant and  sureties  on  oath  as  to  their  sufficiency  and 
responsibility,  and  may  take  such  other  evidence  in  re- 
lation thereto,  in  his  discretion,  as  either  party  may  of- 
fer. 

On  filing  the  bond,  so  approved,  with  the  clerk  of  the 
court,  the  proceedings  in  garnishment  will  be  thereby 
discontinued,  and  the  costs  of  the  proceedings  will  abide 
the  event  of  the  principal  suit.  If  the  plaintiff  recovers 
judgment  against  the  principal  defendant,  on  applica- 
tion to  the  court,  execution  thereon  may  be  ordered  to 
issue  against  the  sureties  in  the  bond  as  well  as  the  de- 
fendant. 

When  proceedings  in  garnishment  are  discontinued 
by  reason  of  the  filing  of  such  bond,  it  is  the  duty  of 
the  clerk  forthwith  to  notify  the  attorney  for  the  plain- 
tiff of  the  filing  of  the  bond,  and  it  is  the  duty  of  such 


874  Garnishment  §  43 

attorney,  within  twenty-four  hours  after  the  receipt  of 
such  notice  from  the  clerk,  to  give  notice  in  writing  to 
the  persons  against  whom  process  of  garnishment  has 
been  issued  that  the  proceedings  in  garnishment  have 
been  discontinued.  This  notice  should  be  served  upon 
the  attorney  for  the  garnishee,  if  he  has  appeared  by 
attorney,  but  otherwise  upon  the  garnishee,  and  may 
be  served  in  the  same  manner  as  other  notices  are  re- 
quired to  be  served.'* 

Form  of  Bond  to   Stay  Proceedings 

Know  all  men  by  these  presents,  that  we,  C.  D.,  as  principal,  and  E.  F. 
and  G.  H.,  as  sureties,  are  held  and  firmly  bound  unto  the  said  A.  B.  in 

the  sum  of dollars  (a  sum  equal  to  double  the  amount  of  the  claim 

of  the  plaintiff  as  sworn  to  in  the  affidavit  for  the  writ  of  garnishment), 
lawful  money,  for  the  payment  of  which,  well  and  truly  to  be  made,  we 
bind  ourselves,  our,  and  each  of  our,  heirs,  executors,  and  administrators, 
jointly  and  severally,  firmly  by  these  presents. 

Sealed  with  our  seals,  and  dated  this day  of ,  in  the  year 

one  thousand  nine  hundred  

The  condition  of  this  obligation  is  such  that,  whereas  the  said  A.  B. 
has  lately  prosecuted  the  said  C.  D.,  by  writ  of  summons  (or,  by  writ  of 
attachment,   capias  ad  respondendum,   or   declaration),   issued   out   of   the 

circuit  court  for  the  county  of ,  and  has  caused  to  be  issued  out  of 

said  court  a  writ  of  garnishment,  whereby  G.  R.  was  duly  summoned  to 
answer  the  said  A.  B.,  as  garnishee  of  the  above-bounden  0.  D. ; 

And  whereas  the  amount  of  the  plaintiff 's  claim  against  the  said  C.  D., 
as  sworn  to  in  the  affidavit  for  said  writ  of  garnishment,  is  the  sum  of 
, dollars : 

Now,  if  the  said  C.  D.  shall  pay  any  judgment  obtained  against  him  by 
the  said  A.  B.  in  said  action,  and  abide  the  order  of  the  court  therein,  then 
this  obligation  is  to  be  void;   otherwise  to  remain  in  full  force  and  effect. 

(Add  justification.) 

[Signatures.] 

Form  of  Notice  to  Plaintiff  of  Time  and  Place  for  Approval  of  Sureties 

for  Bond 

(Title  of  court  and  cause.) 
Sir:— 

You  will  please  to  take  notice  that  the  annexed  is  a  copy  of  a  bond 
proposed  to  be  filed  with  the  clerk  of  said  court,  and  that  the  said  bond  will 

74Jud.   Act,   ch.   28,   §44;    Comp. 
Laws  1915,  §  13165. 


1 44  Garnishment  875 

be  presented,  for  approval  of  the  sureties  therein  named,  to  the  Honorable 

J.  S.,  circuit  judge,  at  his  chambers,  in  the  court  house,  in  the   of 

,  in  said  county. 

Dated,  etc. 

Yours,  etc., 

K.  L., 

Defendant's  Attorney. 
To  J.  K.,  Attorney  for  Plaintiff. 

Form  of  Notice  to  Plaintiff  of  the  Filing  of  Bond  to  Stay  Proceedings 

(Title  of  court  and  cause.) 

Sir:— 

You  are  hereby  notified  that  the  above-named  defendant,  C.  D.,  has  filed 

in  my  office  a  bond  to  the  above-named  A.  B.,  plaintiff,  in  the  sum  of 

dollars,  v?ith  J.  K.  and  H.  M.  as  sureties,  to  stay  the  proceedings  in  this 
cause  against  the  said  garnishee,  which  said  bond  -was,  previously  to  the  filing 
thereof,  as  aforesaid,  duly  approved  by  the  Honorable  J.  S.,  circuit  judge. 

Dated,  etc. 

Yours,  etc., 

W.  B., 
Caerk, 
*   To  J.  K.,  Plaintiff's  Attorney. 

Form  of  Notice  to  Garnishee  of  Discontinuance  Upon  Bond  Filed 

(Title  of  court  and  cause.) 
Sir:— 

You  are  hereby  notified  that  the  above  named  C.  D.,  principal  defendant, 
has  filed  a  bond  in  the  office  of  the  clerk  of  said  court,  under  the  provi- 
sions of  the  statute  in  such  case  made  and  provided,  and  that,  in  accord- 
an(^e  therewith,  the  proceedings  in  garnishment  in  this  suit  have  been 
discontinued. 

Dated,  etc. 

Yours,  etc., 

J.  K., 
Plaintiff's  Attorney. 
To  S.  K.,  Attorney  for  Garnishee. 

VIII.  Delivery  of  Property  to  Commissioner  or  Receiver 

§  44.  Written  promises  for  payment  of  money  or  deliv- 
ery of  property. 
If,  upon  the  disclosure  or  the  trial  of  the  statutory 
issue,  hereinafter  explained,  it  appears  that  the  gar- 
nishee had  in  his  possession,  at  the  time  of  the  service 


876  Garnishment  §  44 

of  the  process  upon  liim  or  thereafter,  any  promissory 
note,  bill  of  exchange,  order,  receipt,  bond  or  other 
written  promise  for  the  payment  of  money  or  the  de- 
livery of  property  belonging  to  the  principal  defendant, 
the  garnishee  must  deliver  it  to  the  commissioner  or 
other  person  appointed  by  the  judge  or  commissioner 
as  a  receiver,  if  by  him  or  the  court  so  ordered;  and  it 
is  his  duty,  under  the  direction  of  the  court,  to  collect 
and  apply  the  proceeds  upon  any  execution  in  favor  of 
the  plaintiff  and  against  the  garnishee  and  to  pay  him 
the  surplus,  if  any."^^  This  practice  is  not  applicable  to 
reach  a  note  or  other  promise  for  the  payment  of  money 
which  belongs  jointly  to  the  defendant  and  a  third  per- 
son.''' 

§  45.  Delivery  of  personal  property  subject  to  lien. 

If,  upon  the  disclosure  or  the  trial  of  the  statutory 
issue,  it  appears  that  the  garnishee  had  in  his  posses- 
sion, at  the  time  of  the  service  of  the  writ  or  thereafter, 
any  personal  property  of  the  principal  defendant  sub- 
ject to  a  pledge,  lien  or  mortgage  in  favor  of  the  gar- 
nishee and  that  the  property  has  not  been  sold  by  the 
garnishee,  it  is  the  duty  of  the  garnishee  to  deliver  it 
to  the  commissioner  or  receiver,  if  the  commissioner  or 
judge  so  order,  to  be  by  him  disposed  of  under  the  direc- 
tion of  the  court,  if  a  greater  amount  than  the  incum- 
brance can  be  obtained  therefor,  the  balance,  after  pay- 
ing the  amount  of  the  incumbrance,  to  be  applied  upon 
any  execution  in  favor  of  the  plaintiff  against  the 
garnishee,  or  the  plaintiff  may  be  allowed  by  like  order 
-to  pay  or  tender  the  amount  due  the  garnishee ; ''  but 
the  receiver  or  commissioner  cannot  properly  be  given 
greater  powers  over  property  in  the  hands  of  a  mortga- 

76Jud.    Act,    ch.    28,    §7;    Comp.  77  Jud.    Act,   ch.    28,    §8;    Comp. 

Laws  1915,  §  13128.  Laws   1915,    §  13129. 

76  Kennedy  v.  McLellan,  76  Mich. 
598. 


§  46  Garnishment  877 

gee  or  other  lien-holder  than  a  sheriff  would  have  under 
an  execution.  It  is  proper  to  empower  the  receiver  or 
commissioner  to  examine  the  property  and  make  an  in- 
ventory of  it  for  the  purposes  of  an  intelligent  sale,  but 
the  contract  rights  of  the  mortgagee  or  other  lien-holder 
cannot  be  infringed  in  any  material  way,  and  the  sale, 
if  made  by  the  commissioner  or  receiver  without  first 
paying  off  the  incumbrance,  must  be  of  the  property  in 
gross,  subject  to  the  mortgage  or  other  lien,  and  all  of 
the  proceedings  must  be  at  the  expense,  not  of  the  mort- 
gagee or  other  lien-holder,  but  of  the  fund  that  may  be 
realized  on  the  sale.'' 

§  46.  Effect  of  refusal  to  obey  order. 

If,  in  either  of  the  cases  specified  in  the  last  two  pre- 
ceding sections,  the  garnishee  refuses  to  comply  with 
the  order  of  the  judge  or  commissioner  for  delivering, 
the  garnishee  may  be  held  liable  for  the  amount  of  the 
note,  order,  choses  in  action  or  personal  property  upon 
the  report  of  the  commissioner  of  such  refusal  and 
amount,  and  judgment  may  be  rendered  and  execution 
issued  accordingly,  as  upon  default.'*  To  such  report, 
the  judge,  commissioner  or  receiver  is  required  to  add 
a  statement  of  any  order  made  by  him  and  the  deliver- 
ing to  him  of  any  property  or  thing,  with  a  description 
and  valuation  thereof,  to  be  ascertained  by  an  appraise- 
ment or  inquiry  upon  oath  or  in  such  mode  as  the  com- 
missioner or  judge  direct. '° 

78  Smith     v.     Menominee     Circuit  the  mortgagee,  there  is  no  substan- 

Judge,  53  Mich.  560;  Daggett,  Bas-  tial    reason    why    it    may    not    be 

sett   &   Hills   Co.   V.   McClintock,   56  granted.      Cohnen    v.    Sweenie,    105 

Mich.  51.  Mich.  643. 

The  statute  contemplates  that  sur-  79  Jud.    Act,    ch.    28,    §  9 ;    Comp. 

plus  in  the  hands  of  a  lienor  may  be  Laws  1915,  §  13130. 

reached  by  process   in   garnishment,  80  Jud.   Act,   eh.   28,    §  10 ;    Comp. 

and  if,  in  the  discretion  of  the  court.  Laws  1915,  §  13131. 

justice  requires  leave   to   garnish   a  On     special     motion     and     cause 

receiver  holding  at  the  instance  of  shown,  any  party  may  have  an  or- 


878  Garnishment  §  47 

IX.   Procedure  Where  Principal  Defendant  a  Non-Resi- 
dent  or  Foreign  Corporation 

§  47.  Statutory  provisions. 

If  the  phiintiff,  in  addition  to  the  allegations  required 
to  be  contained  in  the  affidavit  for  the  writ  of  garnish- 
ment, sets  forth  in  such  affidavit  that  the  principal  de- 
fendant is  a  non-resident  of  the  county  or  state  where 
the  suit  is  commenced,  or  that  one  of  the  principal  de- 
fendants is  such  a  non-resident,  or  that  the  principal 
defendant  is  a  foreign  coi-poration  created  in  any  juris- 
diction (naming  it),  the  principal  writ  or  declaration  and 
the  affidavit  may  be  filed  of  the  day  of  issue,  and  the  writ 
of  garnishment  may  be  served  as  in  ordinary  cases. 
Within  sixty  days  after  such  service,  the  plaintiff  must 
cause  to  be  delivered  to  such  non-resident  defendant  or 
to  the  president,  secretary,  cashier  or  treasurer  of  such 
foreign  corporation  residing  out  of  this  state,  or  upon 
any  officer,  clerk,  or  agent  residing  or  to  be  found  within 
this  state,  a  true  copy  of  the  principal  writ  or  declara- 
tion, affidavit  and  writ  of  garnishment,  with  return  of 
service  thereon,  and  with  a  written  or  printed  notice  at- 
tached, signed  by  the  plaintiff  or  his  attorney,  stating 
that  such  non-resident  defendant  or  foreign  corporation 
is  notified  to  appear  and  defend  within  thirty  days  after 
such  service  or  default  will  be  entered  and  judgment 
taken;  and,  upon  filing  an  affidavit  of  such  service, 
further  proceedings  to  judgment  may  be  had  as  in  or- 
dinary personal  actions.  If  there  are  several  principal 
defendants  some  of  whom  reside  in  this  state,  notice  must 
be  served  on  the  resident  defendants  of  the  time  and 
manner  of  giving  notice  to  the  non-resident  defendants."^ 

der    on    the    commissioner    for    an  of  the  cause.    Jud.  Act,  ch.  28,  §  43 ; 

amendment   of  his   report   or   for   a  Comp.  Laws  1915,  §  13164. 

further  report  or  any  other  order  on  81  Jud.   Act,  ch.   28,    §29;    Comp. 

the  commissioner  to  which  he  is  en-  Laws  1915,  §  13150. 

titled  at  any  time  in  the  progress  The  next  section  of  the  act  pro- 


§  47  Gaenishment  879 

Unless  a  personal  service  of  the  declaration  or  process 
by  which  the  principal  suit  was  commenced  is  made  upon 
the  principal  defendant,  or  he  enters  his  appearance 
therein,  the  service  by  delivering  to  him  a  true  copy  of 
the  principal  writ  or  declaration,  affidavit  and  writ  of 
garnishment  with  return  of  service  thereon,  and  with  the 
notice  above  specified,  within  sixty  days  after  the  service 
of  the  writ  of  garnishment  on  the  garnishee  defendant, 
is  absolutely  prerequisite  to  the  acquirement  by  the  court 
of  jurisdiction  over  either  the  principal  defendant  or  the 
garnishee. ^^  In  the  absence  of  such  service,  the  gar- 
nishee may  have  the  garnishment  proceedings  dismissed 
on  motion  to  the  court.  If,  however,  he  does  not  move 
to  dismiss,  but,  disregarding  the  absence  of  service  on 
the  principal  defendant  within  the  sixty  days,  permits 
the  proceedings  to  go  on,  if,  after  such  time,  a  valid  per- 
sonal service  is  obtained  upon  the  principal  defendant 
of  the  declaration  or  process  by  which  the  principal  suit 
was  commenced,  or  the  principal  defendant  appears 
therein,  a  judgment  rendered  against  the  garnishee  will 
not  be  invalid  by  reason  of  the  failure  to  obtain  service 
on  the  principal  defendant  within  such  sixty  days.*^  This 
is  on  the  theory  that  the  principal  suit  will  sup]iort  the 

vides  that  whenever  the  action  shall  The  proceedings  are  substantially 

be  commenced  by  writ  of  attachment  in  rem  and  are  justified  by  the  prin- 

against  a  non-resident  defendant  or  ciples   underlying   such   proceedings, 

foreign  corporation,  and  a  writ   of  Moore  v,  Wayne   Circuit  Judge,  55 

garnishment    shall    issue,    the    same  Mich.  84. 

proceedings  shall  be  had  in  respect  Failure   to   describe   defendant   as 

to   personal    service   upon   the   prin-  a    foreign    corporation    in    the   sum- 

cipal  defendant,  as  are  specified  in  mons    is    immaterial.      Williams    v. 

the  previous  section,  that  is,  personal  International  Grain  &  Stock  Board, 

service  of  notice  of  the  proceedings.  99  Mich.  80. 

The    primary    object    of   proceed-  Service    on   the   president    of   the 

ings  under  this  statute  is  not  to  ob-  corporation    while    in    the    state    is 

tain    a    personal    judgment    against  good.     National  Coal  Co.  v.  Cincin- 

the     principal     defendant,     but     to  nati,  etc.,  Min.  Co.,  168  Mich.  195. 
reach  the  res  in  the  hands  of  a  third  82  Axtcll  v.  Gibbs,  52  Mich.  640. 

person.     Newland  v.  Wayne  Circuit  83  Coe  v.  Hinkloy,  109  Mich.  608. 

Judge,  85  Mich.  151. 


880  Gaknishment  §  47 

garnishment  proceedings,  even  though  no  service  has 
been  obtained  upon  the  principal  defendant,  subject, 
however,  to  the  necessity  of  obtaining  such  service.^* 

Foiin  of  Notice  to  Be  Served  Upon  Non-Resident  or  Foreign  Corpora- 
tion, Principal  Defendant 
(Title  of  court  and  cause.) 
To  the  Above-Named  Principal  Defendant: 

You  will  please  to  take  notice  that  annexed  hereto  are  copies  of  the 
summons  (or,  writ  of  attachment,  or  declaration,  as  the  case  may  be)  by 
which  this  suit  was  commenced,  and  of  the  affidavit  for  writ  of  garnish- 
Iment,  and  of  the  writ  of  garnishment  herein,  with  the  return  of  service 
thereon;  and  that  you  are  required  to  appear  and  defend  the  above- 
entitled  suit  within  thirty  days  after  the  service  of  this  notice  upon  you, 
or  your  default  will  be  entered  and  judgment  taken  herein,  according  to 
the  statute  in  such  case  made  and  provided. 
Dated,  etc. 

Yours,  etc., 

J.  K., 
Plaintiff's  Attorney. 

§  48.  When  and  what  judgment  may  be  entered  against 
non-resident  principal  defendant. 
Besides  the  service  by  delivering  to  the  principal  de- 
fendant a  true  copy  of  the  principal  writ  or  declaration, 
affidavit  and  writ  of  garnishment  with  the  return  of 
service  thereon  and  the  notice  mentioned  in  the  last  pre- 
ceding section,  it  is  necessary,  in  order  to  give  the  court 
jurisdiction  to  render  a  judgment  against  the  principal 
defendant  where  he  does  not  appear  in  the  cause,  that 
some  sort  of  service  as  to  him  should  be  made  either  upon 
the  person  or  upon  his  property  or  credits.  The  statute 
which  authorizes  the  service  of  notice  out  of  the  state 
presupposes  that  some  sort  of  service  has  been  made  in 
the  county  in  which  the  suit  was  commenced,  and  the 
notice  is  required  for  the  purpose  of  fairness  and  to  pre- 
clude secret  and  collusive  proceedings.^^  Where  service 
upon  the  garnishee  has  been  obtained  within  the  county 

84  McDonald  v.  Alanson  Mfg.  Co.,  85  People  v.  Wayne  Circuit  Judge, 

107  Mich.  10.  26  Mich.  100. 


§49  Gaenishment  881 

and  the  notice  has  been  given  to  the  principal  defendant, 
the  court  acquires  jurisdiction  to  render  judgment  by 
default  against  the  principal  defendant;'^  not,  however, 
a  personal  judgment,  but  to  subject  the  indebtedness  or 
property  in  the  hands  of  the  garnishee  to  the  payment  of 
the  plaintiff's  demand.*''  The  service  of  a  writ  of  gar- 
nishment within  the  county,  followed  by  a  discontinu- 
ance of  the  garnishment  proceedings,  will  not  be  sufficient 
to  give  the  court  jurisdiction,  even  though  other  writs  of 
garnishment  have  been  served  in  other  counties  of  the 
state,®*  for,  although  the  statute  ®^  contemplates  the  issue 
of  writs  of  garnishment  to  different  counties  than  that  in 
which  the  principal  suit  is  pending,  this  is  only  where 
there  is  jurisdiction  of  the  principal  suit  in  the  county 
in  which  it  is  planted,  obtained  either  by  personal  service 
of  process  or  attachment  of  property  or  credits  within 
that  county.®"  Although  no  judgment  can  be  had  against 
the  principal  defendant  when  he  is  not  served  within  the 
county  and  does  not  voluntarily  appear,  unless  such  facts 
are  established  as  will  be  sufficient  to  charge  the  gar- 
nishee, yet  whether  the  existence  of  such  facts  is  shown 
by  the  disclosure  of  the  garnishee  or  not  is  immaterial.  If 
their  existence  is  not  so  shown,  the  question  of  their  ex- 
istence is  a  proper  subject  of  inquiry  upon  a  statutory 
issue  between  the  plaintiff  and  the  garnishee.®^ 

X.  Judgment,  Execution  and  Costs 

§  49.  Judgment  when  garnishee  is  found  liable  to  prin- 
cipal defendant. 

If,  by  the  verdict  on  the  statutory  issue,  the  garnishee 
be  found  liable  as  such  for  an  amount  equal  to  or  greater 

86  Moore  V.  Speed,  55  Mich.  84.  89  Jud.   Act,   ch.   28,   §36;    Comp. 

87  Newland     v.      Wayne      Circuit       Laws  1915,   §  13157. 

Judge,    85    Mich.    151;     Serviss    v.  90  Stern  v.  Frazer,  105  Mich.  685. 

Washtenaw  Circuit  Judge,  116  Mich.  91  Serviss    v.    Washtenaw    Circuit 

101.  Judge,    116   Mich.    101;    Nachtegall 

88  Stern  v.  Frazer,  105  Mich.  685.  v.  Rcilley,  165  Mich.  347, 

1  Abbott— 56 


882  Gaknishment  §  49 

than  the  judgment  and  costs  against  the  principal  de- 
fendant, judgment  can  pass  against  the  garnishee  only 
for  the  latter  amount,  but  in  other  cases  it  will  pass  for 
the  amount  of  liability  ascertained  by  the  verdict;  ®^  but, 
when  the  garnishee  is  found  indebted  to  the  principal 
defendant,  and  the  time  of  payment  has  not  arrived,  no 
judgment  can  pass  until  after  the  time  of  maturity,  which 
is  required  in  such  case  to  be  named  in  the  finding  or 
verdict.®' 

§  50.  Judgment  against  garnishee  in  case  of  no  trial  of 
statutory  issue. 
If  no  trial  of  the  statutory  issue  be  demanded,  then, 
after  the  expiration  of  the  time  limited  for  making  such 
demand,  judgment  may  be  rendered  against  the  garnishee 
defendant  on  plaintiff's  motion  to  the  court  at  any  time 
after  final  judgment  against  the  defendant  in  the  prin- 
cipal cause,  without  further  notice  to  the  garnishee.** 
The  disclosure  and  answers  to  special  interrogatories  and 
upon  personal  examination  of  the  garnishee  must,  for  the 
purpose  of  a  motion  for  judgment  against  the  garnishee, 
be  taken  as  true,  and  no  judgment  will  be  entered  against 
the  garnishee  unless  a  clear  and  unqualified  liability  has 
been  established.*'' 

§  51.  Judgment  and  execution  when  garnishee  is  liable 
for  goods  and  chattels  of  defendant. 
When  a  garnishee  is  chargeable  by  reason  of  any  goods 
or  chattels,  other  than  money,  which  he  holds  or  is  bound 

92  Jud.   Act,   ch.   28,   §15;    Comp.  This  right  to  judgment  on  motion 

Laws  1915,  §  13136.  without   notice   seems   to   be   limited 

98  Jud.  Act,  ch.  28,   §  18;    Comp.  to  the  cases  where  the  disclosure  ad- 

Lawa  1915,  §  13139.  mits    a    liability    of    the    character 

94iJud.  Act,  ch.  28,  §11;  Comp.  charged  in  the  affidavit,  and  such  a 
Laws  1915,  §13132;  Heald  v.  Mont-  judgment  on  motion  cannot  go  be- 
calm Circuit  Judge,  166  Mich.  297;  yond  the  plain  admissions  in  the  dis- 
King  V.  Harrigan,  145  Mich.  436.  closure.        To      warrant      judgment 

96  Smith  v.  Holland,  81  Mich.  471.  thereon,     a     garnishee 's     disclosure 


§  51  Garnishment  883 

to  deliver  to  the  principal  defendant,  not  subject  to  any 
lien,  judgment  may  be  rendered  and  execution  issued 
against  the  garnishee  for  so  much  thereof  as  may  be 
necessary  to  satisfy  the  same,  and  he  is  required  to  make 
delivery  to  the  officer,  whose  duty  it  is  thereupon  to  sell 
and  apply  and  account  for  the  proceeds  as  usual  in  or- 
dinary executions.®^  If  the  garnishee  be  found  to  be  un- 
der contract  for  the  delivery  of  any  specific  articles  to 
the  principal  defendant  or  to  make  payment  therein, 
judgment  will  be  rendered  and  execution  issued  against 
the  garnishee  for  so  much  thereof  as  will  be  necessary 
to  satisfy  the  execution,  and  the  articles  must  thereupon 
be  paid  and  delivered  to  the  plaintiff  according  to  the 
contract,®'''  but,  when  specific  goods  are  to  be  delivered 
to  the  principal  defendant  at  a  certain  time  and  place, 
the  garnishee  cannot  be  compelled  by  reason  of  the 
garnishment  to  deliver  them  at  any  other  time  and  place, 
but  may  deliver  as  provided  for  in  the  contract,  unless 
previously  adjudged  liable  as  garnishee.®'  The  plain- 
tiff will  be  deemed  the  agent  of  the  principal  defendant 
for  the  purpose  of  recovering  the  goods,  chattels  and 
articles  so  contracted  to  be  delivered  to  the  principal 
defendant,  and  may  levy  his  execution  thereon  to  the 
amount  of  his  debt  and  costs.  If  no  division  of  the  goods, 
chattels  or  articles  can  be  made,  the  whole  may  be  sold. 
The  property  unsold  and  the  surplus  proceeds  of  the 

must   be    explicit    in   its   admission,  the   possession   of   the   garnishee   at 

and    not    too    ambiguous    to     show  the  time  of  the  service  of  the  writ 

whether  any  indebtedness  exists  or,  of  garnishment,  and  also  what  was 

if  so,  to  whom.    Weirch  v.  Scribner,  the  value  of  such  property.     Bethel 

44  Mich.  73;  Spears  v.  Chapman,  43  v.  Linn,  63  Mich.  464. 

Mich.  541.  97Jud.  Act,  eh.   28,   §20;    Comp. 

96Jud.   Act,  ch.   28,    §19;    Comp.  Laws  1915,  §13141. 

Laws  1915,  §13140;  Bethel  v.  Linn,  98  Jud.   Act,  ch.  28,    §21;    Comp. 

63  Mich.  464.  Laws    1915,    §13142;     Hamilton    v. 

The  jury  must  find  what  property  Rogers,  67  Mich.  135. 
of   the   principal  defendant   was   in 


884  Garnishment  §  51 

property  sold  must  be  delivered  by  the  officer  to  the  prin- 
cipal defendant  on  demand.®* 

If  a  person  adjudged  liable  as  garnishee  for  any  goods, 
chattels  or  other  property  whatever  refuses  to  expose 
the  same  so  that  the  plaintiff  may  levy  his  execution 
thereon,  the  court  will,  on  return  thereof  made  by  the 
officer,  grant  a  rule  upon  the  garnishee  to  show  cause 
why  execution  should  not  issue  against  him,  his  own 
goods  and  estate,  and,  upon  due  service  of  such  rule,  and 
no  sufficient  cause  being  shown  to  the  contrary,  execu- 
tion may  be  issued  against  him  for  sucli  sum  as  the  court 
may  adjudge.^ 

§  52.  Judgment  when  property  has  been  conveyed  to 
garnishee  in  fraud  of  creditors. 

If  a  garnishee  has  in  his  possession  any  property  of 
the  principal  defendant  which  he  holds  by  a  conveyance 
or  title  which  is  void  as  to  the  creditors  of  the  defendant, 
or  has  received  and  disposed  of  any  such  property,  he 
may  be  adjudged  liable  as  garnishee  on  account  of  such 
property  and  for  its  value,  although  the  principal  de- 
Tendant  could  not  have  maintained  an  action  therefor 
against  him.^  It  is  unnecessary  to  show  that  the  fraud 
in  the  conveyance  or  title  affected  any  creditor  other  than 
the  plaintiff.' 

§  53.  Effect  of  judgment  against  garnishee. 

A  judgment  against  any  person  as  a  garnishee  will 
acquit  and  discharge  him  and  his  executors  or  adminis- 
trators from  all  demands  by  the  principal  defendant,  his 
executors  or  administrators  for  all  moneys  or  property 
paid  or  delivered  by  the  garnishee  by  force  of  such  pay- 
ment; and,  if  any  garnishee  is  sued  therefor  or  for  any- 

99Jud.   Act,   ch.   28,  §22;    Comp.  8  Jud.    Act,    eh.    28,    §32;    Comp 

Laws  1915,   §  13143.  Laws  1915,  §  131.53. 

1  .Jud.    Act,    ch.    28,  §  23 ;    Comp.  8  Gumberg  v.   Truesch,   103   Mich 

Laws  1915,  §  13144.  543. 


1 55  Garnishment  885 

thing  done  by  virtue  of  the  statute  regulating  garnish- 
ment proceedings,  he  may,  under  the  general  issue,  give 
the  special  matter  in  evidence.*  No  judgment  can  be 
rendered  against  a  garnishee  unless  it  will  discharge  him 
from  liability  to  the  principal  defendant  to  the  extent  of 
the  judgment.* 

§  54.  Setting  aside  or  removal  to  supreme  court  of  judg- 
ments. 
Any  judgment  or  final  order  in  a  suit  in  garnishment 
may  be  set  aside  or  removed  to  the  supreme  court  in  like 
manner  and  with  the  same  effect  as  in  other  personal 
actions.® 

§55.  Costs. 

If,  on  the  trial  of  the  statutory  issue,  judgment  is  ren- 
dered against  the  garnishee  for  a  greater  amount  or  for 
other  property  than  he  would  have  been  chargeable  for 
on  his  disclosure,  it  will  carry  full  costs;  otherwise,  the 
garnishee  will  recover  costs,  and  execution  may  issue  as 
in  ordinary  cases.'  If  the  garnishee  appears  and  makes 
disclosure,  he  will  be  allowed  his  costs  for  trial  and  at- 
tendance as  in  case  of  a  witness,  and,  in  case  an  attor- 
ney is  employed  to  prepare  the  disclosure,  such  further 
sum  as  the  court  thinks  reasonable  for  his  counsel  fees 
and  other  necessary  expenses.^  In  case  the  garnishee  is 
adjudged  liable,  his  costs  may  be  taxed  and  deducted 

4Jud.    Act,   ch.   28,   §  35;    Comp.  lanaw  Circuit  Judge,  107  Mich.  332. 

Laws  1915,  §  13156.  8  Jud.    Act,   ch.    28,    §39;    Comp. 

6  Hamilton    v.    Rogers,    67    Mich.  Laws   1915,   §13160. 

135.  Where    the    court    has    fixed    the 

6  Jud.  Act,  ch.  28,  §42;  Comp.  costs  at  an  amount  which  he  deems 
Laws  1915,  §  13163;  Eecor  v.  St.  reasonable,  the  supreme  court  will 
Clair  Circuit  Judge,  139  Mich.  156;  not  interfere.  United  States  Life 
Gorman  v.  Calhoun  Circuit  Judge,  Ins.  Co.  v.  Muskegon  Circuit  Judge, 
140  Mich.  230.  117  Mich.  319,  whore  an  attorney  fee 

7  Jud.  Act,  ch.  28,  §16;  Comp.  of  fifteen  dollars  allowed  to  the  gar- 
Laws  1915,  §  13137;  Jackson  v.  Lee-  nishee  was  held  reasonable. 


886  Garnishment  §  55 

from  the  property  or  money  in  his  hands,  and  he  will  be 
chargeable  only  for  the  balance.  If  the  garnishee  be 
discharged,  whether  by  reason  of  his  having  no  money 
or  property,  or  because  the  plaintiff  does  not  recover 
judgment  against  the  principal  defendant,  or  for  any 
other  cause,  his  costs  and  charges  must  be  paid  by  the 
plaintiff,  and  the  garnishee  may  have  them  taxed  and 
judgment  and  execution  therefor.® 

§  56.  Executions. 

Execution  may  be  issued  by  the  court  against  the  prin- 
cipal defendant  for  any  balance  due  the  plaintiff  on  his 
judgment  against  such  defendant  beyond  the  amount  for 
which  the  garnishee  is  found  liable,  and  further  execu- 
tions may  be  issued  from  time  to  time  against  the  prin- 
cipal defendant  or  any  garnishee  as  the  court  may  order, 
until  the  satisfaction  of  the  judgment  in  full.^" 

Form  of  Execution  Against  a  Gamisliee 
In.  the  Name  of  the  People  of  the  State  of  Michigan. 

To  the  Sheriff  of  the  County  of   ,  Greeting: 

We  command  you  that  of  the  goods  and  chattels  of  E.  F.  in  your  county 

you  cause  to  be  made dollars,  which  A.  B.,  plaintiff,  lately  in  our 

'circuit  court  for  the  county  of ,  recovered  against  the  said  E.  F.  as 

garnishee  of  C.  D.,  the  principal  defendant,  in  a  certain  personal  action 
brought  by  the  said  A.  B.  against  the  said  C.  D.,  in  which  the  said  E.  F. 
was  duly  summoned  as  garnishee  of  the  said  C.  D.,  as  aforesaid,  whereof 
the  said  garnishee  is  convicted,  as  appears  to  us  of  record;  and  if  suf- 
ficient goods  and  chattels  of  the  said  garnishee  cannot  be  found  within 
your  county,  that  then  you  cause  the  said  sum  of  money  to  be  made  of  the 
real  estate  of  the  said  garnishee  within  your  county;  and  have  you  that 

money  before  our  said  circuit  court  at   ,  on   ,  to  render  unto 

the  said  plaintiff  in  satisfaction  of  the  judgment  aforesaid. 

Witness,  etc. 

8Jud.    Act,   ch.    28,    §39;    Comp.  Lenawee    Circuit    Judge,    107    Mich. 

Laws  1915,  §13160;  Strong  v.  Hoi-  267. 

Ion,  39  Mich.  411;   Johnson  v.  Del-  10  Jud.   Act,  ch.   28,    §34;    Comp. 

bridge,    35    Mich.    436;    Wolcott    v.  Laws  1915,  §  13155. 


^  1  Guardian  ad  Litem  oe  Next  Friend  887 

GENERAL  ASSUMPSIT 

See  Assumpsit. 

GENERAL  ISSUE 

See  Plkading. 

GOOD  FAITH 

See  Ejkctment. 

GOODS  SOLD  AND  DELIVERED 

See  Assumpsit;  Pleading. 

GOVERNOR 

See  Mandamus. 

GRAIN 

See  Replevin    (description  of  in  writ). 

GUARDIAN  AD  LITEM  OR  NEXT  FRIEND 

§  1.  For  infant  or  mentally  incompetent  plaintiff. 

§  2.  Appointment. 

§  3.  Bond  of  next  friend. 

§  4.  When  and  where  order  of  appointment  to  be  filed. 

§  5.  Guardian  ad  litem  for  defendant. 

§  6.  Appointment. 

§  7.  Liability. 

§  8.  Procedure  in  case  of  insanity  pendente  lite. 
§  9.  Effect  of  failure  to  give  security. 

Cross-Sefereiices:  Security  for  Costs;  Costs;  Trial  (next  friend 
as  interpreter). 

§  1.  For  infant  or  mentally  incompetent  plaintiff. 

When  an  infant  or  a  person  who  is  insane  or  otherwise 
mentally  incompetent  has  a  right  of  action,  he  is  entitled 
to  maintain  an  action  thereon.^  But  no  rule  is  clearer 
than  that  an  infant  cannot  empower  an  agent  or  attor- 
ney to  act  for  him,2  and,  not  having  the  power  to  appoint 
an  attorney,  an  infant  must,  according  to  the  former 

IJud.    Act,    ch.    12,    §28;    Comp.  2  Armitage    v.    Widoe,    36    Mich. 

Laws  1915,  §  12379;  Bloomingdale  v.       124. 
Chittenden,  74  Mich.  698. 


Guardian  ad  Litem  or  Next  Friend  §  1 

English  practice,  as  well  as  that  obtaining  in  this  state, 
sue  by  a  prochein  ami  or  next  friend.^  Another  reason 
for  requiring  an  infant's  suit  to  be  prosecuted  by  a  next 
friend  is  that  the  defendant  may  have  some  one  respon- 
sible to  him  for  costs,*  and  accordingly  the  statute  has 
made  no  such  requirement  when  an  infant  sues,  not  alone, 
but  with  an  adult  plaintiff.  Still  there  must  be,  even  in 
such  cases,  some  competent  party  representing  on  the 
record  the  interests  of  the  infant  plaintiff,  and  the  courts 
seem  to  have  recognized  no  exception  to  this  rule  but  in 
the  case  of  joint  executors,  some  of  whom  are  under  age 
and  others  not.  As  the  authority  is  joint  in  such  a  case, 
the  adult  executors  represent  all.^  The  statute  in  this 
state  requiring  the  appointment  of  a  next  friend  in  the 
case  of  a  suit  brought  by  an  infant  or  a  person  who  is 
insane  or  otherwise  mentally  incompetent  provides  that, 
before  the  declaration  is  filed  or  any  process  issued  in 
the  name  of  such  a  person,  who  is  a  sole  plaintiff,  a  com- 
petent and  responsible  person  shall  be  appointed  by  the 
circuit  judge  or  a  circuit  court  commissioner  to  appear 
as  next  friend  for  him,  who  shall  be  responsible  for  the 
costs  of  the  suit.  But  if  the  plaintiff  has  a  guardian  of 
his  estate,  it  is  competent  for  the  guardian  to  bring  the 
action.^ 

The  statute  does  not  mean  that  the  next  friend  shall 
be  financially  responsible  to  pay  the  costs,  but  that  he 
shall  be  answerable  for  or  liable  to  respond;  that  is,  that 
he  may  be  held  for  the  costs  the  same  as  though  he  were 
the  party  in  interest  in  the  suit.'    He  has  authority  to 

8  Haines  v.  Oatman,  2  Doug.  430.  Next  friend  may  first  be  appointed 

4  Sick  V.  Michigan  Aid  Ass  'n,  49  on  appeal  in  the  circuit  court.  Mc- 
Mich.  50.  Donald  v.  Weir,  76  Mich.  243. 

6  Sick  V.  Michigan  Aid  Ass  'n,  49  1  Rabidon     v.     Muskegon     Circuit 

Mich.  50.  JiHlge,  110  Mich.  297. 

ejud.  Act,  ch.  12,  §28;  Comp. 
Laws  1915,  §  12379;  Stoner  v.  Eiggs, 
128  Mich.  129. 


§  1  Guardian  ad  Litem  or  Next  Friend  889 

receive  payment  of  the  judgment  and  to  satisfy  it,®  pro- 
vided he  has  given  security  to  the  plaintiff  as  required 
by  law,  but  not  otherwise.^  He  cannot  admit  away  the 
rights  of  the  infant  or  other  incompetent.^" 

Where  the  infant  becomes  of  age  before  the  trial,  he 
may  himself  prosecute  the  action,  and  it  is  proper  to 
formally  amend  the  record  to  show  that  the  suit  is  prose- 
cuted by  plaintiff  himself,  either  by  striking  out  the  name 
of  the  next  friend  or  by  a  suggestion  of  record  that  plain- 
tiff has  attained  his  full  age;  but  failure  to  make  such 
an  amendment  is  not  ground  for  reversal  unless  the  fail- 
ure is  in  some  way  prejudicial  to  defendant.^^  While 
the  projier  course  is  to  entitle  a  cause  in  which  an  infant 
is  the  real  plaintiff  in  the  name  of  the  infant  by  his  next 
friend,  yet  the  proceedings  are  not  invalidated  by  prose- 
cuting the  action  in  the  name  of  the  next  friend.^^  After 
issue  joined,  a  declaration  in  the  name  of  a  guardian  may 
be  amended  by  making  the  ward  the  plaintiff,  suing  in 
the  name  of  the  guardian  as  his  next  friend,  where  the 
issue  is  in  no  way  changed.^'  Where  a  judgment  is  en- 
tered in  the  name  of  the  next  friend,  without  showing 
the  capacity  in  which  he  sues,  it  may  be  amended  by  in- 
serting the  infant's  name." 

If  the  plaintiff  fails  to  procure  the  appointment  of  a 
next  friend,  the  defendant  may  raise  the  objection  by  a 
motion  to  dismiss"  or  he  may  waive  it;  and  he  does 
waive  it  by  going  to  trial  on  the  merits. ^^  If  the  defend- 
ant raises  the  objection  that  the  appointment  of  a  next 

8  Baker  v.  Pere  Marquette  K.  Co.,  13  Morford  v.  Dieffenbaeker,  54 
142  Mich.  497.                                               Mich.  593. 

9  Cir.  Ct.  Eule  63.  14  Kees  v.  Maxim,  99  Mich.  493. 

10  Burt  V.  McBain,  29  Mich.  260,  16  Haines  v.  Oatnian,  2  Doug.  430; 
265,  agree  to  discontinue  and  dis-  Blood  v.  Harrington,  8  Pick.  (Mass.) 
miss  action  for  slander.  552;    Greenman    v.    Cohee,    61    Ind. 

11  Bernard  v.  Pittsburg  Coal  Co.,  201 ;  Lumpkins  v.  Justice,  1  Ind.  557. 
137  Mich.  279.  16  Follows  v.  Niver,  18  Wend.  (N. 

12  Kees  V.  Maxim,  99  Mich.  493.  Y.)  564;  Smith  v.  Allen,  16  Ind.  316. 


890  Guardian  ad  Litem  or  Next  Friend  §  1 

friend  for  the  plaintiff  has  been  omitted,  the  court  may- 
allow  an  appointment  nunc  pro  tunc  and  an  amendment 
accordingly,  and,  if  not  objected  to,  the  defect  will  be 
cured  by  the  verdict  or  judgment.^'' 

§  2.  Appointment. 

The  procedure  for  the  appointment  of  a  next  friend 
in  this  state  is  prescribed  by  statute,  and  is  somewhat 
different  from  that  of  the  common  law,  which,  before 
any  statute  on  the  subject,  was  followed  in  Michigan.^* 
By  the  present  practice,  the  appointment  must  be  made, 
in  the  case  of  a  suit  intended  to  be  brought  in  the  cir- 
cuit court,  by  any  judge  thereof  or  circuit  court  commis- 
sioner, on  the  petition  of  the  infant,  if  he  be  over  the  age 
of  fourteen  years,  and  in  all  other  cases  on  the  petition 
of  his  next  of  kin  or  other  relative  or  friend  whom  the 
officer  to  whom  the  petition  is  presented  deems  a  proper 
person  to  make  it,  and  upon  the  written  consent  of  the 
person  proposed  to  be  next  friend,  duly  acknowledged 
before  any  officer  authorized  by  law  to  take  acknowledg- 
ments of  deeds. ^^ 

Form  of  Commencement  of  Declaration  by  an  Infant 

The  Circuit  Court  for  the  County  of 

(Title  of  cause,  if  suit  not  eommeneed  by  declaration,) 
County  of ,  ss. 

A.  B.,  by  J.  K.,  who  is  admitted  by  the  court  here  to  prosecute  for  the 
said  A.  B.,  who  is  an  infant  under  the  age  of  twenty-one  years,  as  the  next 
friend  of  the  said  A.  B.,  plaintiff,  in  this  suit,  complains  of  C.  D.,  defendant 
herein,  etc. 

Form  of  Petition  by  Infant  Over  Fourteen  Years  of  Age  for  Appoint- 
ment of  Next  Friend 
To  the  Circuit  Court  for  the  County  of (or.  Circuit  Court  Commis- 
sioner of  the  County  of )  : 

The  petition  of  A.  B.,  of   ,  respectfully  shows: 

1.  That  he  is  an  infant  of  the  age  of years. 

17  Sick  V.  Michigan  Aid  Ass'n,  49  18  Haines  v,  Oatman,  2  Doug.  430. 

Mich.  50;  Schemerhorn  V.  Jenkins,  7  19  ,Tud.    Act,   ch.   12,   §29;    Comp. 

Johns.    (N.  Y.)    373;   Smith  v.  Car-  Laws  1915,  §12380. 
ney,  127  Mass.  179. 


§  3  Guardian  ad  Litem  or  Next  Friend  891 

2.  That  he  has  a  cause  of  action  against  C.  D.  for  (briefly  state  what) 
upon   which   he   desires   to   commence   a  suit   in  the   circuit   court  for   the 

county   of    against   the   said   C.   D.,   claiming  therein   a  judgment 

for dollars. 

3.  That  E.  F.,  of   ,  is  a  suitable  and  proper  person  to  appear  as 

next  friend  to  the  said  A.  B.  in  said  suit. 

Wherefore,  your  petitioner  prays  that  the  said  E.  F.  may  be  appointed 
his  next  friend  to  bring  said  suit  for  him. 
Dated,  etc. 

A.  B. 
(Consent  of  Person  Proposed  as  Next  Friend.) 

I,  E.  F.,  of ,  do  hereby  consent  to  act  as  next  friend  to  the  above 

mentioned  A.  B.  in  the  proposed  suit  mentioned  in  the  foregoing  petition. 
(Add  acknowledgment.) 

§  3.  Bond  of  next  friend. 

Before  any  person  will  be  appointed  next  friend  for 
an  infant  or  incompetent  in  any  suit  to  recover  any  debt 
or  damages,  lie  must,  if  required  by  the  officer  to  whom 
application  for  the  appointment  is  made,  execute  a  bond 
to  the  proposed  plaintiff  in  a  penalty  at  least  double  the 
amount  claimed  in  the  suit,  with  such  sureties  as  shall 
be  approved  by  such  officer,  conditioned  that  such  next 
friend  shall  duly  account  to  the  plaintiff  for  all  moneys 
which  may  be  recovered  in  the  suit.^**  The  bond  must  be 
delivered  to  the  officer  before  the  appointment  is  made, 
and  be  filed  by  him  in  the  office  of  the  judge  of  probate 
of  the  county  in  which  the  infant  resides.^^ 

Form  of  Bond  by  Next  Friend 

Know  all  men  by  these  presents,  that  we,  E.  F.  and  G.  H.,  are  held  and 

firmly  bound  unto  A.   B.  in  the  sum   of   dollars    (penalty  at   least 

double  the  amount  claimed  in  the  suit),  lawful  money,  to  be  paid  to  the 
said  A.  B.,  his  executors  and  administrators,  for  which  payment  well  and 
truly  to  be  made  we  bind  ourselves,  our,  and  each  of  our,  heirs,  executors 
and  administrators,  jointly  and  severally,  firmly  by  these  presents. 

Sealed   with    our  seals,   and   dated  this    day  of    ,   in    the 

year  one  thousand  nine  hundred   

The  condition  of  this  obligation  is  such  that,  if  the  above-bounden  E.  F. 

20Jud.    Act,   ch.    12,    §29;    Comp.  21  .Jud.   Act,   ch.   32,    §29;    Comp. 

Laws  1915,  §  12380.  Laws  1915,  §  12380. 


892  Guardian  ad  Litem  or  Next  Friend  §  3 

shall  duly  account  to  tho  said  A.  B.  for  all  moneys  which  may  be  recovered 

in  a  suit  now  to  be  commenced  in  the  circuit  court  for  the  county  of , 

by  the  said  A.  B.,  as  plaintiff,  and  against  C.  D.,  as  defendant,  wherein 
the  said  E.  F.  has  been  duly  appointed  to  appear  as  next  friend  for  said 
A.  B.,  then  this  obligation  is  to  be  void;  otherwise  to  remain  in  full  force 
and  effect. 

E.  F.  [L.  S.] 
G.  H.  [L.  S.] 
State    of    Michigan,  )  ^^ 
County  of f 

E.  F.  and  G.  H.,  sureties  of  the  principal  named  in  the  foregoing  bond, 
being  duly  sworn,  each  for  himself  deposes  and  says  that  he  is  worth  in 
unincumbered  property,  not  exempt  from  execution  under  the  laws  of  this 

state,  the  sum  of   dollars,  after  payment  of  all  just  debts,  claims 

and  liabilities. 

E.  F. 
G.  H. 
Subscribed,  etc. 

§  4.  When  and  where  order  of  appointment  to  be 

filed. 
The  order  for  the  appointment  of  a  next  friend  must 
be  fortliwitli  filed  in  the  office  of  the  clerk  of  the  court 
in  which  the  action  is  to  be  begun.''^ 

§  5.  Guardian  ad  litem  for  defendant. 

After  the  service  of  process,  or  the  service  of  declara- 
tion if  the  suit  be  commenced  by  declaration,  against  a 
defendant  who  is  an  infant  or  is  insane  or  otherwise  men- 
tally incompetent,  the  suit  is  to  be  defended  by  the  guar- 
dian of  the  estate  of  the  defendant  if  there  be  one,  but, 
if  there  be  no  such  guardian,  then  the  suit  cannot  be 
any  further  prosecuted  until  a  guardian  ad  litem  for  such 
defendant  has  been  appointed.^^     Failure  to  appoint  a 

22  Jud.  Act,  ch.  12,  §28;  Comp.  There  is  no  distinction  between 
Laws  1915,  §  12379.  sane  and  insane  persons  in  proceed- 

23  Jud.  Act,  ch.  12,  §30;  Comp.  ings  at  law  as  to  the  method  of  ob- 
Laws   1915,   §  12381.  taining  jurisdiction  of  their  persons. 

Same    rule    applicable    to    actions  IngersoU  v.  Harrison,  48  Mich.  234; 

relating  to  real  property.     Jud.  Act,  Stoncr  v.  Riggs,  128  Mich.  129;  Er- 

ch.     33,     §8;     Comp.     Laws     1915,  win  v.  Fay,  165  Mich.  503. 

§  13365.  That  judgment  against  insane  de- 


§  6  Guardian  ad  Litem  or  Next  Friend  893 

guardian  ad  litem  renders  a  judgment  against  an  infant 
voidable  but  not  void;  but  where  several  years  have 
elapsed  since  the  judgment  its  vacation  may  be  barred 
by  laches.^*  Failure  to  have  a  guardian  ad  litem  ap- 
pointed on  taking  an  appeal  from  the  probate  to  the  cir- 
cuit court  is  a  mere  irregularity  which  may  be  cured  by 
the  appointment  of  a  guardian  ad  litem  in  the  circuit 
court.^^ 

The  person  appointed  guardian  ad  litem  should  be  a 
person  disinterested  in  the  subject-matter  of  the  suit,  or 
at  least  not  interested  adversely  to  the  interests  of  the 
infant.  The  guardian  is  intended  for  the  benefit  and  pro- 
tection of  the  infant,  and  the  whole  object  of  requiring 
a  guardian  at  all  would  be  perverted  by  appointing  a 
person  adversely  interested.^^  Indeed  the  court  should 
appoint  some  person  who  may  be  relied  upon  actively  to 
protect  the  defendant's  interests.^' 

§  6.  Appointment. 

If  the  defendant  is  an  infant  more  than  fourteen  years 
of  age,  he  may  nominate  his  guardian  ad  litem.  In  all 
other  cases,  the  nomination  may  be  made  by  the  next  of 
kin  of  the  defendant  or  any  other  relative  or  friend  whom 
the  judge  or  circuit  court  commissioner  deems  a  proper 
person  to  make  the  nomination.  If  the  judge  or  commis- 
sioner approves  the  nomination,  he  will  make  the  ap- 
pointment accordingly  upon  the  filing  of  the  written  con- 
sent of  the  person  proposed  as  guardian  ad  litem.  If 
he  does  not  approve  the  nomination,  he  may  appoint 
some  other  suitable  person. 


28 


f  endant,  where  there  is  no  guardian  26  Damouth    v.    Klock,    29    Mich. 

ad    litem,    is    merely    voidable,    see  289. 

Johnson  v.  Cook,  179  Mich.  117,  27  Erwin   v.   Fay,  165   Mich.   50.3; 

24  Schimpf      v.      Wayne      Circuit  Frieseke  v.  Frieseke,  138  Mich.  458. 

Judge,  129  Mich.  103.  28  Jud.   Act,  ch.   12,   §30;    Comp, 

26  In    re    Sanborn's    Estate,    109  Laws  1915,  §  12381. 
Mich.  191. 


894  Guardian  ad  Litem  or  Next  Friend  §6 

If  no  nomination  of  a  person  for  guardian  ad  litem  is 
made  within  twenty  days  after  the  service  of  the  process 
or  declaration  by  which  the  suit  was  commenced,  the 
plaintiff  may  obtain  an  order  from  the  court  in  which 
the  action  is  pending  appointing  some  suitable  person 
to  act  as  guardian  ad  litem.^* 

Form  of  Aflldavit  to  Obtain  Appointment  of  Guardian  ad  Litem  for 

Infant  Defendant 

(Title  of  court  and  cause.) 
County  of ,  ss. 

A.  B.,  the  above  named  plaintiff,  being  duly  sworn,  deposes  and  says  that 
service  of  the  process  (or  declaration)  by  which  this  action  was  com- 
menced was   duly  made  upon  the  said   defendant  on  the    day  of 

,  A.  D ,  as  appears  by  the  return  of  S.  T.,  sheriff  of  said 

county,  now  on  file  herein,  and  that  the  said  defendant  is  an  infant  under 
the  age  of  twenty-one  years. 

And  this  deponent  further  says  that  twenty  days  have  elapsed  since 
the  said  service  of  said  process  (or,  the  said  service  of  the  said  declara- 
tion, if  the  suit  was  commenced  by  declaration)  upon  the  said  defendant 
and  that  no  nomination  or  appointment  of  a  guardian  ad  litem  for  the 
said  defendant  has  been  made. 

A.  B. 

Subscribed,  etc. 

§  7.  Liability. 

Guardians  ad  litem  are  not  liable  for  the  costs  of  the 
suit,  unless  specially  charged  by  the  order  of  the  court 
for  some  personal  misconduct  in  the  cause.*® 

§  8.  Procedure  in  case  of  insanity  pendente  lite. 

If,  while  an  action  is  pending,  either  party  should  be- 
come insane,  it  may  be  prosecuted  or  defended  by  his 
general  guardian  or  the  court  may  appoint  a  next  friend 
or  guardian  ad  litem  as  the  case  may  require.'^ 

29Jud.   Act,   ch.  12,   §30;    Comp.  31Jud.   Act,  ch.   12,   §31;    Comp. 

Laws  1915,  §  12381.  Laws  1915,  §  12382. 

30Jud.    Act,   ch.   12,    «30;    Conii). 
Laws  1915,  §  12381. 


Habeas  Corpus  895 

§  9.  Effect  of  failure  to  give  security. 

Unless  the  next  friend,  guardian  ad  litem  or  general 
guardian  prosecuting  or  defending  a  suit  on  behalf  of 
an  infant,  insane  or  otherwise  mentally  incompetent 
plaintiff  or  defendant  gives  security  to  such  party  accord- 
ing to  law,  he  will  not  be  entitled  to  receive  as  such  any 
money  or  property  belonging  to  such  party  or  awarded  to 
him  in  the  suit  except  such  costs  and  expenses  as  are  al- 
lowed by  the  court.^^ 

HABEAS  CORPUS 

§    1.  Kinds. 

§    2.  Historical. 

§    3.  In  what  cases  may  issue. 

§    4.  To  whom   application  to  be  made. 

§    5.  Proof  when  application  presented  out  of  county. 

§    6.  Refusal  to  consider  application. 

§    7.  Eecord  of  allowance. 

§'  8.  Contents  of  petition, 

§    9.  Duty  of  court  or  officer  to  whom  petition  presented. 

§  10.  Certiorari  instead  of  habeas  corpus. 

§  11.  When  writ  granted  without  application. 

§  12.  Indorsement  of  allowance  of  writ.  • 

§  13.  Charges  for  bringing  up  prisoner. 

§  14.  Requisites  of  writs. 

§  15.  Service  of  writs. 

§  16.  Duty  of  person  served. 

§  17.  Return. 

§  18.  Attachment  to  compel. 

§  19.  Penalty  for  obstructive  acts. 
§  20.  Hearing  and  determination. 

§  21.  When  prisoner  to  be  let  to  bail. 

§  22.  Disposition  of  prisoner  pending  judgment. 

§  23.  Notice  of  writ. 

§  24.  Hearing  and  other  proceedings  on  return  of  certiorari. 

§  25.  Proceedings  in  case  of  disobedience  of  order  for  discharge. 

§  26.  Habeas  corpus  after  certiorari  issued  or  applied  for. 

§  27.  Discharge  as  former  jeopardy. 

§  28.  Punishment  for  re-imprisonment. 

§  29.  Warrant  before  issuing  of  habeas  corpus  or  certiorari, 

§30.  Costs. 

88  Cir.  Ct.  Rule  63, 


896  Habeas  Corpus  §  1 

§  31,  How  habeas  corpus  proceedings  reviewed, 
§  32.  Habeas  corpus  ad  testificandum. 

Cross-Eeferences:  Witnesses  (habeas  corpus  to  bring  up  prisoner  to 
testify) ;  Contempt  (habeas  corpus  in  contempt  proceedings) ;  Fraudulent 
Debtors  (habeas  corpus  to  review  imprisonment  under  proceedings  to 
punish  fraudulent  debtors), 

§  1.  Kinds. 

The  writ  of  habeas  corpus  is  so  called  from  the  em- 
pliatic  words  in  the  Latin  form  of  the  writ,  signifying 
**that  you  have  the  body."  There  are  various  forms  of 
the  writ  which  were  in  use  in  England  at  an  early  date, 
some  of  which  are  now  employed  both  in  that  country 
and  in  America.  All  of  them  were  designed  to  remove 
prisoners  from  one  court  into  another  and  differed  one 
from  the  other  in  respect  of  the  purpose  for  which  the 
removal  of  the  prisoner  was  sought.  Thus,  there  was 
the  habeas  corpus  ad  respondendum,  to  remove  a  pris- 
oner that  he  might  be  charged  with  a  new  action  in  a 
higher  court;  the  habeas  corpus  ad  prosequendum,  to  re- 
move a  prisoner  to  the  jurisdiction  wherein  it  was  alleged 
that  he  committed  a  crime;  the  habeas  corpus  ad  satis- 
faciendum, to  remove  a  prisoner  to  a  higher  court  that 
he  might  be  charged  with  process  of  execution;  the 
habeas  corpus  ad  testificandum,  to  remove  a  prisoner  in 
order  that  he  might  give  testimony  in  a  court;  the  habeas 
corpus  ad  faciendum  et  recipiendum,  commanding  the 
judge  of  an  inferior  court  to  produce  the  body  of  the  de- 
fendant, with  a  statement  of  the  cause  of  his  detention; 
and  the  habeas  corpus  ad  subjiciendum,  commanding 
the  person  having  another  in  detention  to  produce  the 
body  of  the  prisoner,  with  the  day  and  cause  of  his  cap- 
tion and  detention,  to  do,  submit  to  and  receive  what- 
ever the  judge  or  court  awarding  the  writ  consider 
proper  in  that  behalf.^     This  last  is  the  one  commonly 

13  Cooley's  Bl.  Comm,  129,  130;       etc.,   Co.,    117    Ga.    305;    And.    Law 
Cyc.   Law   Diet.   tit.   ' '  Habeas    Cor-       Diet.  tit.   '  *  Habeas  Corpus. ' ' 
pus";    Simmons    v.    Georgia    Iron, 


§  2  Habeas  Corpus  897 

understood  when  the  writ  of  habeas  corpus  is  mentioned. 

§  2.  Historical. 

The  writ  of  habeas  corpus  was  issuable  from  the  King's 
Bench  and  was  used  to  protect  or  restore  liberty  by  bring- 
ing the  prisoner  before  the  court  and  ordering  his  im- 
mediate discharge  if  he  was  unlawfully  restrained  of  his 
liberty.  But  it  was  evaded  to  such  an  extent  by  officials 
wlio  yielded  to  royal  and  ministerial  usurpations  that  it 
became  powerless,  and  finally  the  court  went  so  far  as 
to  decide  that  it  had  no  power  to  release  a  prisoner  de- 
tained without  cause  if  he  were  imprisoned  by  the  ex- 
press command  of  the  king  or  by  the  lords  of  the  privy 
council.  Whereupon  the  petition  of  right  in  1628,  as- 
serted the  illegality  of  this  decision  and  various  provi- 
sions were  shortly  afterwards  enacted  to  restore  the  writ 
to-  its  former  efficiency.  But  even  then  the  judges  con- 
trived either  to  refuse  the  writ  or  to  discharge  the  pris- 
oner on  one  pretext  or  another,  and  it  was  not  until  the 
year  1679  that  statute  of  31  Charles  II,  commonly  known 
as  the  Habeas  Corpus  Act,  by  its  provisions  so  skillfully 
drawn  as  almost  to  preclude  the  possibility  of  evasion, 
firmly  re-established  the  writ  and  gave  it  the  position 
which  it  has  since  had.^  It  was  used  in  the  American 
colonies  and  is  protected  by  express  provisions  not  only 
in  the  federal  constitution,'  but  also  in  those  of  the  vari- 
ous states,  the  provision  of  the  Michigan  constitution, 
like  that  of  the  federal  constitution,  being  that  the  priv- 
ilege of  the  writ  shall  not  be  suspended  unless,  in  case 
of  rebellion  or  invasion,  the  public  safety  may  riMiuire 
it* 


2  Parsons  v.  Russell,  11  Midi.  11:1;  3  IT.  S.  Const.  Art.  I,  soc  9,  s\il.(l. 

Am.    Cyc.    tit.    "Habeas    Corpus";       2. 

Speilins  E.xtr.  Relief,  see.  llfjO.  4  ('oust.  Art.  IT,  see.  11. 

1  Abbott— 57 


808  Habeas  Corpus  §  3 

§  3.  In  what  cases  may  issue. 

In  Michis>an,  it  is  ^n'ovided  by  statute  that  every  per- 
son committed,  detained,  confined  or  restrained  of  his 
liberty  within  this  state  for  any  criminal  or  supposed 
criminal  matter  or  under  any  pretense  whatever,^  except 
as  will  l»e  presently  specified,  may  prosecute  a  writ  of 
habeas  cori)us  or  of  certiorari  to  inquire  into  the  cause 
of  his  imprisonment  or  restraint.''  But  the  following 
Ijci'sons  will  not  be  entitled  to  prosecute  such  writ:  (1) 
Persons  committed  or  detained  by  virtue  of  any  process 
issued  by  any  court  of  the  United  States  or  any  judge 
thereof,  in  cases  where  such  courts  or  judges  have  ex- 
clusive jurisdiction  under  the  laws  of  the  United  States 
or  have  acquired  exclusive  jurisdiction  by  the  commence- 
ment of  suits  in  such  courts; '  (2)  persons  committed  for 
treason  or  felony  or  for  suspicion  thereof  or  as  acces- 
saries before  the  fact  to  a  felony,  where  the  cause  is 
plainly  and  specially  expressed  in  the  warrant  of  com- 
mitment; (o)  persons  convicted  or  in  execution  upon 
legal  process,  civil  or  criminal;  (4)  persons  committed 
on  original  process  in  any  civil  action  on  which  they 
were  liable  to  be  arrested  and  imprisoned,  unless  when 
excessive  and  unreasonable  bail  is  required.* 

6  " Under  any  pretense  whatever "  6  Jiul.    Aft,    ch.    37,    §7;    Comp. 

extends   the    remedy   to   cases   other  Laws     1915,     §13459;     Palmer     v. 

than     where     persons     are     charged  Buck,  83  Mich.  528;  Miller  v.  Rosier, 

with  crime.     In  re  Jackson,  15  Mich.  31    Mich.   475 ;    In   re   Hamilton,   51 

417.  Mich.  174. 

Habeas  corpus  may  be  issued  nor  ^  In  re  Spangler,  11  Mich.  298. 

only    to    review    imprisonment    on    a  *  Jud.    Act,    ch.    37,    §  8 ;     Comp. 

criminal    or    quasi    criminal    charge  Laws  1915,  *!  13460. 

but  also  to  review  imprisonment   in  If   execution  against   the   body   is 

civil  actions  or  proceedings  subject  issued,   habeas   corpus   does   not   lie 

to  certain  statutory  rules.     Furthc-  to    obtain    discharge    from    custody 

more  it  may  be  issued  although  ther?  on   the   ground  that   the  declaration 

is  no  imprisonment,  as  where  to  de-  does    not    state    facts    sufficient    to 

termine  the  riglit  to  the  custody  of  authorize    a    judgment    for   a    body 

a  child.     See  In  re  Knott,  1()2  Mich.  execution.    In   re  Joseph,  206  Mich. 

10;   Smith  v.  Kiel,  150  Mich.  417.  659. 


§  3  Habeas  Cobpus  899 

Jurisdiction  is  tiie  only  question  open  on  habeas  cor- 
pus.' It  is  not  the  office  of  habeas  corpus  to  review  the 
proceedings  of  a  trial  court  where  jurisdiction  is  shown, 
and,  as  in  other  instances  where  the  attack  is  a  collateral 
one,  the  general  rule  is  that  jurisdiction  and  regularity 
of  procedure  are  presumed  in  the  case  of  the  judgment 
of  a  superior  court. ^*'  To  secure  a  i-eview  of  proceedings 
under  which  one  has  been  convicted  by  a  court  having 
jurisdiction  of  the  offense  charged  under  a  valid  statute 
or  ordinance,  an  appeal  or  a  writ  of  error  should  be  em- 
jjloyed."  And,  on  the  same  principle,  habeas  corpus  can- 
not be  maintained  where  there  has  been  a  valid  convic- 
tion and  an  irregular  sentence  which  may  be  corrected 
by  a  new  sentence,^^  since  where  a  trial  court  has  im- 
posed an  illegal  sentence,  it  has  power  to  substitute  a 
legal  sentence,  even  though  the  illegal  sentence  has  been 
partly  executed,^'  nor  can  it  be  maintained  for  an  irregu- 
laT  commitment,  as  where  a  certificate  required  to  be  in- 
dorsed upon  the  commitment  was  informal;^*  in  both  of 
which  classes  of  cases,  the  court  will  remand  the  pris- 
oner in  consonance  with  the  principle  that  habeas  cor- 
pus cannot  be  used  to  defeat  the  interests  of  justice  on 
anything-  short  of  a  jurisdictional  defect.  And,  in  gen- 
eral, merely  technical  errors  and  irreg'ularities  will  not 
be  considered  in  habeas  corpus  proceedings.^*    But  it  is 

9  In  re  Buslicy,  lO.j  Mu-h.  64;  In  .j(i2;  In  \v  (."ofTccn,  .'{S  Midi,  .".ll;  In 
iv  .lolmson,  104  Mich.  ;>4;?.  w   Eaton,   27   Midi.    1;    In  re   Ellis, 

"  Tlic  writ  of  habeas  corpiis  may  7!)   Mich.   ."522;    Hamilton's  Case,  51 

not   be   used   as   a   substitute   for   a  Midi.   174. 

writ    of    error    or    to    perform    its  12  In    re    Butler,    l.'!8    Midi,    bl.i; 

functions."       In     re     Joseph,     200  In  re  Vitali,  lo'.i  Mich.  514. 
Mich.   659.  13  Peoi»le    v.    Farrell,    140    Midi. 

10  In  re  Lewis,  124  Mich.  199;  In  264. 

re   Manaca,    146    Mich.    697;    In    re  14  In    re    Collins,    l.'Jo    Mich.    91; 

Tubbs,  V.i9  Mich.  102.  In    re    Reinheimer,   97    Mich.    619. 

11  In  re  Lewis,  124  Midi.  199;  1m  15  In  re  Forscntt,  167  Mich.  438; 
re  Bashey,  105  Mich.  64;  In  re  Satt,  In  re  Satt,  164  Mich.  472;  In  ro 
164  Mich.  472;  In  re  Masuire,  lit  Bui-icr,  ;{9  Mich.  20;i ;  Hamilton's 
Mich.  80;  In  re  Underwood,  .JO  Mici-.  Case,  51  Mich.  174;  In  re  Bissell,  40 


900  Habeas  Corpus  §  3 

a  proper  reiiiedy  for  a  conviction  or  conunitmont  with- 
out jurisdiction." 

§  4.  To  whom  application  to  be  made. 

Application  for  the  writ  should  be  made  by  i)etition, 
signed  either  by  the  party  for  whose  relief  it  is  intended 
or  by  some  person"  in  his  behalf,  as  follows:  To  the 
supreme  court  during-  its  session;  to  the  circuit  court  or 
the  circuit  judges  thereof  of  the  county  where  the  pris- 
oner is  detained;  to  any  municipal  court  of  record  or  the 
judge  thereof  of  any  city  where  the  i)risoner  is  detained; 
or,  if  there  be  no  municipal  court  within  the  city  or  the 
judge  thereof  be  absent  from  the  city  and  the  circuit 
judge  be  absent  from  the  county  or  for  any  cause  be  in- 
capable of  acting  or  has  refused  to  grant  such  writ,  then 
application  may  be  made  to  the  circuit  court  or  to  the 
circuit  judge  of  any  adjoining  county.^^  But  no  prisoner 
detained  in  the  jail  of  any  county  awaiting  or  pending 
trial  or  sentence  upon  any  criminal  charge  can  be  re- 
moved therefrom  by  writ  of  habeas  corpus  unless  the 
writ  has  been  issued  by  the  supreme  court  or  by  the  cir- 
cuit court  of  that  county  or  is  made  returnable  before  it.^' 

§  5.  Proof  when  application  presented  out  of  county. 

When  an  application  for  such  a  writ  is  made  to  an 
officer  not  residing  in  the  county  where  the  prisoner  is 
detained,  it  is  his  duty  to  require  proof,  by  oath  of  the 
party  applying  or  by  other  sufficient  evidence,  that  there 
is  no  officer  in  such  county  authorized  to  grant  the  writ, 

Mich.  63;  In  re  Knott,  162  Mich.  10,  plk-atiou.      In   re   Moukl,   162   Mich. 

15.  1. 

16  Hamilton's  Case,  51  Mich.  174;  18  Jud.  Act,  ch.  37,  §9;  Comp. 
Goodchild   v.  Foster,  51   Mich.   .599;  Laws  1915,  §  i:!461. 

Ex  parte  Allen,  l."i9  Mich.  712;  Pal-  That  .iudge  may  act  in  chambers, 

nier  v.  Kalamazoo  Circuit  .Tnrljje,  S.".  see    Coodchild    v.    Foster,    51    Mich. 

Mich.  528;   In  re  Morton,  10  Mich.  599. 

208.  19  Jud.   Act,   ch.   37,   §  71 ;    Com]). 

17  Any  person  may  make  the  ap-  Laws  1915,  §13523. 


§  8  Habeas  Corpus  901 

or,  if  one  reside  there,  that  he  is  absent  or  has  refused 
to  grant  the  writ  or,  for  some  cause  to  be  specially  set 
forth,  is  incapable  of  acting.  If  such  proof  is  not  pro- 
duced, the  application  must  be  denied.*® 

§  6.  Refusal  to  consider  application. 

Any  judge  who  willfully  or  corruptly  refuses  or  neg- 
lects to  consider  an  application  or  petition  for  a  writ  of 
habeas  corpus  or  certiorari  will  be  deemed  guilty  of  mal- 
feasance in  office.*^ 

§  7.  Record  of  allowance. 

When  a  writ  of  habeas  coipus  or  certiorari  is  allowed 
and  heard  by  a  circuit  judge  sitting  at  chambers,  it  is 
his  duty  to  cause  a  record  of  his  action  or  proceedings 
thereon  to  be  made  on  the  journal  of  the  circuit  court  at 
its  next  session.** 

§  8.  Contents  of  petition. 

The  petition  for  a  writ  of  habeas  corpus  or  certiorari 
must  state  in  substance: 

(1)  That  the  person  in  whose  behalf  the  writ  is  ap- 
plied for  is  imprisoned  or  restrained  of  his  liberty,  the 
officer  or  person  by  whom  he  is  confined  or  restrained 
and  the  place  where,  naming  both  parties,  if  their  names 
be  known,  or  describing  them  if  their  names  be  not 
known. 

(2)  That  the  prisoner  is  not  committed  or  detained 
by  virtue  of  any  process,  judgment,  decree,  or  execution 
hereinbefore  specified. 

(3)  The  cause  or  pretense  of  the  confinement  or  re- 
straint according  to  the  best  of  the  knowledge  and  be- 
lief of  the  party. 

20Jii(l.   Act,   ch.   .",7,    §10;    Comp.  22  Jud.    Act,    ch.    37,    §9;    Conip. 

Laws  19L-),  §  13462.  Laws  1915,  §  13461. 

21Jud.    Act,    ch.    37,    §9;    Comp. 
Laws  1915,  §  13461. 


902  Habeas  Corpus  §  8 

(4)  If  the  confinement  be  by  virtue  of  any  warrant, 
order  or  process,  a  copy  thereof  must  be  annexed,  or  it 
must  be  averred  tliat,  for  some  sufficient  reason,  a  de- 
mand for  such  copy  could  not  be  made  or  tliat  such  de- 
mand was  made  and  that  such  copy  was  refused.^^ 

(5)  If  the  imprisonment  be  alleged  to  be  illegal,  the 
l)etition  must  also  state  in  what  the  alleged  illegality 
consists. 

(6)  It  must  specify  whether  the  party  applies  for  the 
writ  of  habeas  corpus  or  for  the  writ  of  certiorari. 

(7)  It  must  be  verified  by  the  oath  of  the  party  mak- 
ing the  application.^* 

Form  of  Petition  for  Habeas  Corpus  or  Certiorari  to  Inquire  Into  Cause 

of  Detention 

To  the  Circuit  Court  for  the  County  of (or  as  the  case  may  be)  : 

The  petition  of  C.  D.,  of   ,  respectfully  shows: 

1.  That    the    said    C.    D.    is    now    imprisoned    by   S.    T.,    sheriff    of    the 

said  county  of ,  in  the  county  jail  of  said  county,  at ,  in  said 

county,  for  a  supposed  criminal  offense,  to  wit:      (State  the  offense.) 

2.  That  he  is  not  committed  or  detained  by  virtue  of  any  process,  judg- 
ment, decree  or  execution  specified  in  the  eighth  section  of  chapter  thirty- 
seven  of  tlie  Judicature  Act  of  nineteen  hundred  fifteen. 

.">.  That,  according  to  the  best  of  your  petitioner's  knowledge  and  belief, 
such  confinement  is  by  virtue  of  a  warrant  (or,  order,  or,  process),  a  copy 
of  which  is  hereto  annexed.  (If,  for  any  reason,  a  demand  of  such  copy 
could  not  be  made,  some  sufiicient  reason  therefor  must  be  averred,  as  fol- 
lows: .'!.  That  a  copy  of  the  warrant,  order  or  process  by  virtue  of  which 
he  is  so  confined,  as  aforesaid,  could  not  be  demanded,  for  the  reason 
that  [here  state  tlie  reason] ;  or,  if  a  copy  has  been  demanded  and  re- 
fused, say:  3.  That,  before  the  making  of  this  application,  a  copy  of  the 
warrant,  order  or  process  by  virtue  of  which  he  is  so  confined,  as  aforesaid, 
was  demanded  of  the  said  S.  T.,  and  the  legal  fees  therefor  at  the  same 
time  were  tendered  to  him,  but  that  such  copy  thereof  was  refused.) 

4.  That  your  petitioner  has  fully  and  fairly  stated  the  facts  pertaining 

23  Any  officer  or  other  person  who  the   person   so   detained   in    the   sum 

refuses  or  neglects  for  six  hours  to  of    two    hundred    dollars    damages, 

deliver  a  copy  of  any  order,  warrant,  Jud.  Act,  ch.  37,  §  56;  Comp.  Laws 

process  or  other  authority  by  which  1915,  §  13508. 

he   detains   any    person    to    any   one  24  Jud.    Act,   ch.   37,   §11;    Comp. 

who  demands  such  copy  and  tenders  Laws  1915,  §  13463. 
the  lawful  fees  therefor  is  liable  to 


§]0  Habeas  Corpus  903 

to  his  said  confinement  to  K.  L.,  his  eounsel,  who  resides  at    ,  and 

that  he  is  advised  by  his  said  counsel,  npon  such  statement  as  aforesaid, 
and  verily  believes,  that  his  said  imprisonment  is  illegal,  and  the  illegality 
thereof  consists  iu  this,  to  wit:    (State  wherein  the  illegality  consists.) 

Wherefore,  your  petitioner  prays  that  a  writ  of  habeas  corpus  (or, 
certiorari)  may  be  issued  to  inquire  into  the  cause  of  your  petitioner's  said 
imprisonment  and  detention  and  that  your  petitioner  may  be  relieved 
therefrom. 

C.  D. 

K.  L.,  Attorney  for  Petitioner. 
Business  address:    ,  Mich. 

(Add  verification.) 

§  9.  Duty  of  court  or  officer  to  whom  petition  presented. 

It  is  the  duty  of  any  court  or  officer  empowered  to  grant 
a  writ  of  habeas  coipus  or  certiorari  to  inquire  into  the 
cause  of  detention,  to  whom  a  petition  is  presented,  to 
grant  the  writ  applied  for  without  delay,  unless  it  ap- 
pears from  the  petition  itself  or  from  the  documents  an- 
nexed that  the  party  applying  for  it  is  prohibited  from 
prosecuting  the  writ.^^  If  any  court  or  officer  author- 
ized to  grant  such  writs  refuses  to  grant  a  writ  when 
legally  applied  for,  every  member  of  the  court  who  has 
assented  to  such  refusal  and  every  such  officer  will  sever- 
ally be  liable  to  the  party  aggrieved  in  one  thousand 
dollars  damages.^® 

§  10.  Certiorari  instead  of  habeas  corpus. 

Whenever  an  application  is  made  for  a  writ  of  habeas 
corpus  according  to  the  provisions  of  law  to  any  court 
or  officer,  if  it  appears  to  the  court  or  officer,  upon  the 
facts  set  forth  in  the  petition,  that  the  cause,  matter  or 
offense  for  which  the  prisoner  is  confined  or  detained  is 
not  bailable  according  to  the  provisions  of  law,  instead 
of  a  writ  of  habeas  corpus  being  awarded,  a  writ  of  cer- 
tiorari may  be  granted,  directed  to  the  officer  or  other 
person  in  whose  custody  or  under  whose  control  tlie  pris- 

25Jud.   Act,   ch.    .S?,   S12;    Comp.  26  Jud.    Act,   cli.    :'.7,    S17;    Coinp. 

Laws  191.'],  §  13464.  l-aws  lillf*,  S  i:54()9. 


904  Habeas  Corpus  §  10 

oner  is  alleged  to  be,  in  like  manner  as  if  a  writ  of  cer- 
tiorari had  been  applied  for  by  the  prisoner 


27 


§  11.  When  writ  granted  without  application. 

When  the  supreme  court  or  any  justice  thereof  or  a 
judge  of  a  circuit  court  has  evidence  from  any  judicial 
proceeding  before  them  that  any  person  in  the  county 
where  such  court  or  officer  shall  be  is  illegally  confined 
and  restrained  of  his  liberty,  it  is  the  duty  of  such  court 
or  officer  to  issue  a  writ  of  habeas  corpus  or  certiorari 
for  his  relief,  although  no  petition  be  presented  or  ap- 
plication be  made  for  the  writ.^* 

§  12.  Indorsement  of  allowance  of  writ. 

Every  writ  of  habeas  corpus  or  certiorari  must  be  in- 
dorsed with  a  certificate  of  its  allowance  and  with  the 
date  of  such  allowance,  which,  if  the  writ  be  awarded 
by  a  court,  must  be  signed  by  the  chief  justice  or  other 
presiding  officer  of  the  court,  and,  if  it  be  awarded  by 
any  officer  out  of  court,  the  indorsement  must  be  signed 
by  such  officer.*®  Whenever  a  writ  of  habeas  corpus  is 
required  in  any  action  or  matter,  civil  or  criminal,  to 
which  the  people  of  the  state  are  a  party,  the  application 
for  the  writ  may  be  made  by  the  attorney  general  or 
prosecuting  attorney  having  charge  of  such  action  or 
matter,  and,  when  so  issued,  the  court  or  officer  allowing 
it  should  state  in  the  indorsement  of  the  allowance  of 
the  writ  that  it  was  allowed  upon  such  application.^'' 

§  13.  Charges  for  bringing  up  prisoner. 

Every  officer  allowing  a  writ  of  habeas  corpus  directed 
to  any  person  other  than  a  sheriff,  coroner,  constable  or 

S7Jud.    Act,   eh.   37,    §.".8;    Comp.  sejud.   Act,   eh.    37,    §60;    Comp. 

Lawa   1915,    S  13490;    In   re   Adams,  Laws  191.'3,  §  13512. 

169  Mich.  606.  30  Jud.   Act,   ch.   37,    §61;    Comp. 

2«Jud.    Act,   ch.   37,    §16;    Comp.  Laws  1915,  §  13513. 
Laws  1915,  §  13468. 


§  14  Habeas  Corpus  905 

marshal  may,  in  his  discretion,  require,  as  a  duty  to  be 
performed  in  order  to  render  the  service  of  the  writ  ef- 
fectual, that  the  charges  of  bringing  up  the  prisoner  be 
paid  by  the  petitioner.  In  such  case,  he  should,  in  the 
allowance  of  the  writ,  specify  the  amount  of  the  charges 
so  to  be  paid,  but  not  to  exceed  the  fees  allowed  by  law 
to  sheriffs  for  similar  services.'^ 

§  14.  Requisites  of  writs. 

The  forms  of  the  writ  of  habeas  corpus  and  the  writ  of 
certiorari  are  prescribed  by  the  statute,'^  but  it  is  ex- 
pressly forbidden  that  any  such  writ  be  disobeyed  for 
any  defect  of  form.  It  is  sufficient  (1)  if  the  person  hav- 
ing the  custody  of  the  prisoner  be  designated  either  by 
his  name  of  office,  if  he  have  any,  or  by  his  own  name, 
or,  if  both  such  names  be  unknown  or  uncertain,  by  an 
assumed  appellation;  and  any  one  served  with  the  writ 
will  be  deemed  the  person  to  whom  it  is  directed,  al- 
though it  may  be  directed  to  him  by  a  wrong  name  or 
description  or  to  another  person;  (2)  if  the  person  im- 
prisoned or  restrained  or  who  is  directed  to  be  produced 
be  designated  by  name,  or,  if  his  name  be  uncertain  or 
unknown,  if  he  be  described  in  any  other  way  so  as  to 
designate  the  person  intended.'' 

All  writs  of  habeas  corpus  or  certiorari  issued  by  any 
court  should  be  under  the  seal  of  the  court.  If  awarded 
by  any  officer  out  of  court,  the  writ  should  be  under  the 
seal  of  the  court  to  which  it  is  made  returnable,  or,  if 
it  be  returnable  before  some  body  other  than  a  court  of 
record  or  before  some  officer  out  of  court,  it  may  be  un- 
der the  seal  of  the  supreme  court  or  of  the  circuit  court 
for  the  county  in  which  it  is  issued  or  of  the  officer  is- 

SlJucl.    Act,   oh.    37,   §68;    Coirip.  33  Jud.   Act,   ch.   37,    5  15;    Comp. 

Laws  1915,  §  13520.  Laws  1915,  §  13467. 

32  Jud.    Act,    eh.    37,    §§13,    14; 
Comp.  Laws  1915,  §§  13465,  13466. 


906  Habeas  Corpus  §  14 

suing  it.'*  Such  writs  may  be  made  returnable  at  a  day 
certain  or  I'ortiiwith,  as  the  case  may  require.'* 

Form  of  Habeas  Corpus  to  Inquire  Into  Cause  of  Detention 

III  tlic  Name  of  the  People  of  the  State  of  Michigan. 
To  tlie  Sheriff  of  the  County  of (or,  To  A.  B.)  : 

We  command  you  that  you  have  the  body  of  C.  D.,  by  you  imprisoned  and 
detained,  as  it  is  said,  together  with  the  time  and  cause  of  such  imprison- 
ment and  detention,  by  whatsoever  name  the  said  C.  D.  shall  be  called  or 
charged,  before  our  justices  of  our  supreme  court    (or,  before  E.  F.,  one 

of  the  justices  of  our  supreme  court,  or  as  the  case  may  be),  at    , 

on    (or,   immediately  after   the   receipt    of   this  writ),   to   do   and 

receive  what  shall  then  and  there  be  considered  concerning  the  said  C.  D.; 
and  have  you  then  and  there  this  writ. 

Witness,  etc. 

Form  of  Habeas  Corpus  ad  Respondendum 
In  the  Name  of  the  People  of  the  State  of  Michigan. 
To  the  Sheriff  of  the  County  of   ,  Greeting: 

We  command  you  that  you  have  the  body  of  C.  T>.,  by  you  imprisoned 

and  detained,  as  it  is  said,  before  the  circuit  court  for  the  county  of 

on    the    day   of    ,   A.   D (or,  forthwith),   to 

answer  for  certain  misconduct  alleged  to  have  been  committed  by  him  in 
contempt  of  said  court,  and  safely  and  securely  to  detain  him  at  the  place 
where  said  court  shall  be  sitting,  until  the  further  order  of  said  court. 

Witness,  etc. 

Form  of  Certiorari  to  Inquire  Into  Cause  of  Detention 

In  the  Name  of  the  People  of  the  State  of  Michigan. 
To  the  Sheriff  of  the  County  of   (or.  To  A.  B.)  : 

We  command  you  that  you  certify  fully  and  at  large  to  our  justices  of 
our  supreme  court  (or,  to  E.  F.,  one  of  the  justices  of  our  supreme  court, 

or  as  the  case  may  be)   at   ,  on    (or,  immediately  after  the 

receipt  of  this  writ)  the  day  and  cause  of  the  imprisonment  of  C.  D.,  by 
you  detained,  as  it  is  said,  by  whatsoever  name  the  said  C.  D.  shall  be 
called  or  charged ;  and  have  you  then  and  there  this  writ. 

Witness,  etc. 

§  15.  Service  of  writs. 

"Writs  of  habeas  coi'pus  can  be  served  only  by  an  elec- 
tor of  some  county  within  the  state.    Service  will  not  be 

34Jud.    Act,  ch.  37,    §58;    Comp.  35  Jud.   Act,   oh.   37,   §59;    Comp. 

Laws  1915,  §  13510.  Laws  1915,  §  13511. 


§  16  Habeas  Corpus  907 

deemed  complete  unless  the  party  serving  the  writ 
tenders  to  the  person  in  whose  custody  the  prisoner  is, 
if  such  person  be  a  sheriff,  coroner,  constable  or  mar- 
shal, the  fees  allowed  by  law  for  bringing  up  the  pris- 
oner.^*^  The  payment  of  such  fees,  however,  is  not  neces- 
sary where  the  writ  is  sued  out  by  the  attorney  general 
or  a  prosecuting  attorney.*"'' 

Everj^  writ  of  habeas  corpus  or  certiorari  may  be 
served  by  delivering  it  to  the  person  to  whom  it  is  di- 
rected. If  he  cannot  be  found,  it  may  be  served  by  leav- 
ing it  at  the  jail  or  other  place  in  which  the  prisoner  is 
confined  with  any  under  officer  or  other  person  of  proper 
age  having  charge  for  the  time  of  the  prisoner.^*  If  the 
person  upon  whom  the  writ  ought  to  be  served  conceal 
himself  or  refuse  admittance  to  the  party  attempting  to 
serve  it,  it  may  be  served  by  fixing  it  in  some  conspicu- 
ous place  on  the  outside  either  of  his  dwelling  house  or 
of  the  place  where  the  prisoner  is  confined.**  The  writ 
itself  must  be  served,  not  merely  a  copy  of  it.*° 

§  16.  Duty  of  person  served. 

It  is  the  duty  of  every  sheriff,  coroner,  constable  or 
marshal,  upon  whom  a  writ  of  habeas  corpus  has  been 
served,  whether  the  writ  is  directed  to  him  or  not,  upon 
the  payment  or  tender  of  the  charges  allowed  by  law,  to 
obey  and  return  the  writ  according  to  its  exigency;  and 
it  is  the  duty  of  every  other  person  upon  whom  such  writ 
has  been  served,  who  has  the  custody  of  tlie  prisoner  for 
whose  relief  the  writ  was  issued,  to  obey  and  execute  it 
according  to  its  command,  without  requiring  the  pay- 
ment of  any  charges  unless  payment  of  charges  has  been 

36Jiul.    Aft,   ch.    37,  §62;    Coni]..           39,Tiul.    Act,   eh.    ?,7,   §65;    Comp. 

Laws  1915,  §  13514.  Laws  1915,  §  1.3517. 

37Jud.   Act,   eh.   37,  §63;    Comp.           40  Klein  v.  Kloin,  How.  N.  P.  266; 

Laws  1915,  §  13515.  Palmer  v.  Kalamazoo  Circuit  .Tndge, 

38Jud.   Act,   eh.   37,  §64;    Comp.       83  Mich.  528;   In  re  Wilson,  4  City 

Laws  1915,  §  13516.  Hall  Rec.  (N.  Y.)  47. 


908  Habeas  Corpus  §  16 

required  by  the  officer  issuing  the  writ.*^  And  likewise 
it  is  the  duty  of  the  person  upon  whom  a  writ  of  cer- 
tiorari has  been  served  to  obey  and  return  it  according 
to  its  exigency,  upon  payment  of  the  fees  allowed  by  law 
for  making  a  return  and  for  copying  the  warrant  or  other 
process  to  be  annexed  thereto.*** 

§17.  Return. 

The  person  upon  whom  a  writ  of  habeas  corpus  or 
certiorari  has  been  duly  served  is  required  to  state  in  his 
return  plainly  and  unequivocally: 

(1)  Whether  he  has  or  has  not  the  party  in  his  cus- 
tody or  under  his  power  or  restraint. 

(2)  If  he  has  the  party  in  his  custody  or  power  or  un- 
der his  restraint,  the  authority  and  true  cause  of  such 
imprisonment  or  restraint,  setting  forth  the  same  at  large. 

(3)  If  the  party  be  detained  by  virtue  of  any  writ, 
warrant  or  other  written  authority,  a  copy  thereof  must 
be  annexed  to  the  return,  and  the  original  must  be  pro- 
duced and  exhibited  on  the  return  of  the  writ  to  the 
court  or  officer  before  whom  it  is  returnable. 

(4)  If  the  person  upon  whom  the  writ  has  been  served 
has  had  the  party  in  his  power  or  custody  or  under  his 
restraint  at  any  time  prior  or  subsequent  to  the  date  of 
the  writ,  but  has  transferred  such  custody  or  restraint 
to  another,  the  return  must  state  particularly  to  whom, 
at  what  time,  for  what  cause  and  by  what  authority  such 
transfer  took  place."  The  return  must  be  signed  by  the 
person  making  it,  and,  unless  he  is  a  sworn  public  officer 
and  makes  his  return  in  his  official  capacity,  it  must  be 
verified  bv  his  oath.** 


41Jud.   Act,  eh.   37,  §66;    Comp.          44 . Tad.  Act,  eh.   37,    §19;    Comp. 

Laws  1915,  §  13518.  Laws  1915,  §  13471. 

42  Jud.   Act,  eh.   37,  §  67 ;    Comp.          Material    faets    stated    in    return, 

Laws    1915,    §  13519.  if  not  denied,  must  be  taken  as  true. 

4S.Iud.   Act,  ch.   37,  §18;    Comp.      In  re  Mason,  8  Mich.  70. 

Laws  1915,  §  13470.  But    court    may    inquire   into    the 


§  18  Habeas  Corpus  909 

If  a  writ  of  habeas  corpus  be  issued,  the  person  or  of- 
ficer on  whom  it  has  been  served  must  also  bring  the  body 
of  the  person  in  his  custody,  according  to  the  command 
of  the  writ,  except  in  case  of  the  sickness  or  infirmity  of 
the  prisoner  of  such  a  nature  that  he  cannot,  without 
danger,  be  brought  before  the  court  or  officer  before 
whom  the  writ  is  returnable;  in  which  case,  the  party 
liaving  custody  of  the  prisoner  may  state  that  fact  in 
Ills  return,  verifying  it  by  his  oath;  and,  if  the  court  or 
officer  is  satisfied  of  the  truth  of  such  allegation  and  the 
return  is  otherwise  sufficient,  the  court  or  officer  will 
]:)roceed  to  decide  upon  such  return  and  to  dispose  of  the 
matter  in  the  same  manner  as  if  a  writ  of  certiorari  had 
been  issued  instead  of  a  writ  of  habeas  corpus.*^  If  the 
writ  be  made  returnable  at  a  certain  day,  the  return  must 
be  made  and  the  prisoner  produced  at  the  time  and  phice 
specified  tlierein.  If  it  be  returnable  forthwith,  and  the 
place  be  witiiin  twenty  miles  of  the  place  of  service,  the 
return  must  be  made  and  the  prisoner  produced  within 
twenty-four  hours,  and  the  like  time  will  be  allowed  for 
every  additional  one  hundred  miles.*^ 

§  18.  Attachment  to  compel. 

If  the  person  upon  whom  a  writ  of  habeas  corpus  or 
certiorari  has  jjoeii  duly  served  refuses  or  neglects  to 
obey  it,  by  producing  the  paity  named  in  the  writ  of 
ha])eas  corpus  and  making  a  full  and  explicit  return  to 
tlie  writ  of  ]ial)eas  corpus  oi-  certiorari  within  the  time 
required,  and  no  sufficient  cause  be  shown  for  such  re- 
fusal or  neglect,  it  is  the  duly  of  the  coui't  or  ollicer  be- 
fore whom  the  writ  has  been  made  retui'na))le,  upon  due 
proof  of  the  service  thereof,  forlhwith  to  issue  an  at- 

liiith    of    a    rolnin    tliat    tho    c-hild  45.)iul.    Act,    cli.    ;!7,    §§  2n,    ?>7 ; 

whose  eustotly  is  in  disinite  was  out-  Tonip.  Laws  IPIH,  SS  l:!472,  i;U80. 

side    tho    stato.      In    lo    Knott,    ir)2  46  Jiul.    Ai't,   eh.    :!7,    S(>!);    ('oin|). 

Mk-h.  10.  Laws  19 LI,  §  L'!r.2L 


010  Habeas  Corpus  §  18 

tachment  against  such  person.*'  Such  attachment  should 
be  directed  to  the  sheriff  of  the  county,  commanding  him 
forthwith  to  apprehend  such  person  and  bring  him  be- 
fore such  court  or  officer;  and,  on  being  so  brought,  such 
person  will  be  committed  to  close  custod}''  in  the  jail  of 
the  county,  Avitliout  being  allowed  the  liberties  thereof, 
until  he  makes  return  to  llie  writ  and  complies  with  any 
order  wliieh  may  be  made  by  the  court  or  officer  in  re- 
lation to  the  prisoner.**  If  a  sheriff  has  neglected  to 
return  the  writ,  the  attachment  may  be  directed  to  any 
coroner  or  other  person  to  be  designated  therein,  who 
will  have  full  power  to  execute  it;  and  the  sheriff,  upon 
])eing  brought  up,  may  be  committed  to  the  jail  of  any 
county  other  than  his  own.** 

The  court  or  officer  by  whom  an  attachment  to  compel 
the  return  of  a  writ  of  habeas  coi'pus  or  certiorari  has 
been  issued  may  also  at  the  same  time  or  afterwards  issue 
a  precept  to  the  same  sheriff  or  otlier  person  to  whom 
the  attachment  is  directed,  commanding  him  to  bring- 
forthwith  before  such  court  or  officer  tlie  party  for  whose 
benefit  tlie  habeas  corpus  or  certiorari  was  allowed,  who 
will  thereafter  remain  in  the  custody  of  sucli  sheriff  or 
otlioi"  person  until  lie  is  discharged,  bailed  or  remanded 
as  the  court  or  officer  issuing  the  precept  may  direct.'^" 

When  an  attachment  to  compel  the  return  of  a  habeas 
corpus  or  certiorari  or  a  precept  to  })ring  up  the  pris- 
oner has  been  delivered  to  a  sherilT  or  other  pei'son,  he 
may  call  to  his  aid  in  executing  it  the  power  of  the 
county  as  in  other  cases. ^^ 

47.Jud.   Act,   ch.   37,   §21;    Cnini..  49  .Turl.    Act,   ch.   ?.7,    §2?.;    Comp. 

Laws  igi."),  n.3473.  Laws  1915,  §  1.''.47;'). 

Effect  of  mistake  in  date  of  com-  50 .7 ml.    Aft,   eh.   .'!7,    §24;    Comp. 

mitment,  see  Tn  re  Knott,  162  Mich.  Laws  1915,  §  13476. 

]fi.  51Jud.    Act,   ch.   37,    §25;    Comp. 

48.1iul.    Act,    fh.    37,    §22;    Cnriip.  L.aws  1915,  §13477. 
Law.s  1915,  §  13474. 


§  20  Habeas  Corpus  911 

§  19.  Penalty  for  obstructive  acts. 

Any  person  who  has  in  his  custody  or  unik-r  liis  })(»w('r 
a  prisoner  who  would  be  entitled  to  a  writ  of  habeas  cor- 
pus or  certiorari  to  inquire  into  the  cause  of  his  deten- 
tion, or  for  whose  relief  such  a  writ  has  been  duly  issued, 
who,  with  intent  to  elude  tlie  service  of  the  writ  or  avoid 
its  eifect,  transfers  the  prisoner  to  the  custody  or  phices 
him  under  the  power  or  control  of  another  or  conceals 
him  or  changes  the  place  of  his  confinement,  and  any 
person  who  knowingly  aids  or  assists  in  so  doing,  will 
be  deemed  guilty  of  a  misdemeanor,  the  penalty  for  wliich 
is  a  fine  not  exceeding  one  thousand  dollars  or  imprison- 
ment in  the  county  jail  not  exceeding  six  months  or  both 
such  fine  and  imprisonment  in  the  discretion  of  the 
court.*^ 

§  20.  Hearing  and  determination. 

'The  court  or  officer  before  whom  a  prisoner  is  brought 
on  a  writ  of  habeas  corpus  is  required  innnediately  after 
the  return  of  the  writ  to  proceed  to  examine  into  the  facts 
contained  in  the  return  and  into  the  cause  of  the  confine- 
ment or  restraint  of  the  prisoner  whether  it  is  for  any 
criminal  or  supposed  criminal  matter  or  not."  The  pris- 
oner, on  the  return  of  tlie  writ  of  habeas  corpus,  may  deny 
any  of  the  material  facts  set  forth  in  the  return  or  allege 
any  fact  to  show  either  that  his  imprisonment  or  deten- 
tion is  unlawful  or  that  he  is  entitled  to  liis  discharge. 
Such  allegations  or  denials  must  i)e  on  oath.  Thereupon 
tile  court  or  officer  will  ])roceed  in  a  sunnnary  way  to  hear 
such  allegations  and  proofs  as  may  be  produced  in  sup- 
port of  or  against  the  imprisonment  or  detention  and  to 
dispose  of  the  prisoner  as  justice  may  require."     The 

52Ju(l.  Act,  eh.  ;!7,  §§  49-51 ;  Laws  1915,  §1.3488;  In  re  Wilson, 
Comp.   Laws    1915,   §n;5501-i:i50.''..     4  City  Hall  Ree-.   (N.  Y.)   47;   In  re 

53Ju(l.  Act,  fh.  H7,  §26;  Comp.Stei.hcn,  1  Wlicelor,  Cr.  Cas.  (N. 
Laws   1915,   S  i:!478.  Y.)  :i2;{. 

54  Jud.   Aet,   ch.   o7,    §;>(!;    Comii. 


912  Habeas  Corpus  §20 

inai('i-i;il  r.-icls  stated  in  the  rutiiri),  il'  not  (leiiied,  are  goii- 
orally  lakoii  as  trne."  But  if  tlic  return  is  evasive  or 
otherwise  iusiiriieicnt  in  matter  of  substance,  the  fact  that 
it  has  not  been  dcsnied  does  not  preclude  the  court  from 
iufjuiring-  into  the  truth  of  its  allegations.^^ 

If  no  legal  cause  be  shown  for  the  imprisonment  or 
restraint  or  for  the  continuation  of  it,  the  court  or  ofKcer 
is  bound  to  dischai-ge  tlie  prisoner  from  the  custody  or 
restraint  under  which  he  is  held."  But  it  is  the  duty  of 
the  court  or  officer  forthwith  to  renuuid  the  prisoner,  if  it 
appears  that  he  is  detained  in  custody  either  (1)  by  vir- 
tue of  process  issued  by  any  court  or  .I'udge  of  the  United 
States  in  a  case  where  such  court  or  judge  has  exclusive 
jurisdiction;  or  (2)  by  virtue  of  the  final  judgment  or  de- 
cree of  any  competent  court  of  civil  or  criminal  jurisdic- 
tion or  of  any  execution  issued  upon  such  judgment  or 
decree;  or  (3)  for  any  contempt  specially  and  plainly 
charged  in  the  commitment  by  some  court,  officer  or  body 
having  authority  to  commit  for  the  contempt  so  charged; 
and  (4)  that  the  time  during  which  the  prisoner  may  be 
legally  detained  has  not  expired.^* 

And  if  it  appears  that  the  prisoner  is  in  custody  by 
virtue  of  civil  process  from  any  court  legally  constituted 
or  issued  by  any  officer  in  the  course  of  judicial  proceed- 
ings before  him  authorized  by  law,  the  prisoner  can  be 
discharged  only  in  one  of  the  folloAving  cases: 

(1)  Where  the  jurisdiction  of  the  court  or  officer  has 
been  exceeded,  either  as  to  matter,  place,  sum  or  pei'son. 

(2)  Where,  though  the  original  imprisonment  was 
lawful,  yet,  by  some  act,  omission  or  event  which  has 
taken  place  afterwards,  the  prisoner  has  become  entitled 
to  be  discharged. 

55  In  re  Mason,  8  Mich.  70'.  58  Jiul.   Aft.   ch.   1^7,    §28;    Comp. 

56  In  re  Knott,  162  Mich.  10.  Laws  1915,  §13480. 
67  Jud.   Act,   ch.   37,   S  27 ;    Coinii. 

Laws  1915,  §  13479. 


§  21  Habeas  Corpus  913 

(3)  Where  tlie  process  is  defeetive  in  some  matter  of 
substance  requiretl  by  law,  rendering  the  i)rocess  void. 

(4)  Where  tlie  process,  though  proper  in  I'onn,  has 
been  issued  in  a  case  not  allowed  by  law. 

(5)  Where  the  person  having  the  custody  of  the  pris- 
oner under  such  })rocess  is  not  the  person  empowered  by 
law  to  detain  him. 

(6)  Where  the  process  is  not  authorized  b.y  anj^  judg- 
ment, order  or  decree  of  any  court  or  by  any  provision 
of  law.^3 

But  no  court  or  officer,  on  the  return  of  a  habeas  corpus 
or  certiorari,  has  power  to  inquire  into  the  legality  or 
justice  of  any  process,  judgment,  decree  or  execution 
specified  in  section  eight  of  chapter  thirty-seven  of  the 
Judicature  Act,  or  into  the  justice  or  propriety  of  any 
commitment  for  contempt  made  by  any  court,  officer  or 
body  according  to  law  and  specially  and  plainly  charged 
in  the  commitment.^" 

§  21.  When  prisoner  to  be  let  to  bail. 

If  it  appears  that  the  prisoner  has  been  legally  com- 
mitted for  a  criminal  offense,  or  if  he  appears  by  the 
testimony  offered  with  the  return,  or  upon  the  hearing 
thereof,  to  be  guilty  of  any  such  offense,  although  the 
commitment  be  irregular,  the  court  or  officer  before  whom 
the  prisoner  has  been  brought  must  proceed  to  let  the 
]nisoner  to  bail,  if  the  case  is  bailable  and  good  bail  is 
offered,  or,  if  not,  forthwith  remand  the  prisoner.^^  If 
the  prisoner  be  not  entitled  to  his  discharge  and  is  not 
bailed,  it  is  the  duty  of  the  court  or  officer  to  remand  him 
to  the  custody  or  place  liim  under  the  restraint  from 

69Jud.    Act,   ch.   .j7,    §29;    Conip.  niodity  a  sentence.     In  ro  Hamilton, 

Laws  1915,  §  13481.  ISS  Mich.  499. 

eO.Tud.    Act,   ch.    ?,1,    §:!0;    Comii.  61  . hid.    A.t.    di.    :\1 ,    §.11;    Conip. 

Laws  1915,  §  13482.  Laws    1915,   §1.{48;{;    In   re   Collins, 

The  supreme  court  cannot  impose  1.35   Mich.  91. 
a    proper    sentence    nor    amend    or 
1  Abbott— 58 


914  Habeas  Corpus  §  21 

which  he  was  taken,  if  the  person  who  had  him  under 
custody  or  restraint  be  legally  entitled  thereto,  and,  if 
he  be  not  so  entitled,  the  prisoner  should  be  committed 
to  the  custody  of  such  officer  or  person  as  by  law  is  en- 
titled to  his  custody.^^ 

§  22.  Disposition  of  prisoner  pending  judgment. 

Until  judgment  be  given  upon  the  return,  the  court  or 
officer  before  wiiom  the  prisoner  is  brought  may  either 
commit  him  to  the  custody  of  the  sheriif  of  the  county  in 
which  the  court  or  officer  is  or  place  him  in  such  care  or 
under  such  custody  as  his  age  and  other  circumstances 
may  require. ^^ 

§  23.  Notice  of  writ. 

When  it  appears  from  the  return  of  the  writ  that  the 
prisoner  is  in  custody  on  any  process  under  which  any 
other  person  has  an  interest  in  continuing  his  imprison- 
ment or  restraint,  no  order  can  be  made  for  his  discharge 
until  it  appears  that  the  part}^  so  interested  or  his  attor- 
ney, if  he  have  one,  has  had  at  least  four  days'  notice  o.f 
the  time  and  place  at  which  the  writ  has  been  made  re- 
turnable.^* An  order  of  discharge  made  after  such  no- 
tice is  res  adjudicata  as  to  the  legality  of  the  imprison- 
ment, even  in  an  action  for  false  imprisonment.^* 

When  it  appears  from  the  return  to  the  writ  that  the 
prisoner  is  detained  upon  a  criminal  accusation,  the  court 
or  officer  can  make  no  order  for  his  discharge  until  suffi- 
cient notice  of  the  time  and  place  at  which  the  writ  has 
been  returned  or  is  made  returnable  has  been  given  to 
the  prosecuting  attorney  of  the  county,  or  to  the  attorney 

62  Jud.  Act,  ch.  37,  §  32 ;  Comp.  Appearance  of  attorney  as  waiver 
Laws  1915,  §  13484.                                      of    notice,    see    People    v.    Kehl,    15 

63  Jud.   Act,   ch.   37,    §33;    Comp.       Mich.  330. 

Laws  1915,  §  13485.  65  Custer  v.  Bates,  127  Mich.  285. 

64  Jud.   Act,   ch.   37,   §34;    Comp. 
Laws  1915,  §  13486. 


§  24  Habeas  Corpus  915 

general,  if  there  be  no  prosecuting  attorney  within  the 
coiinty.^^ 

Form  of  Notice  to  Prosecuting  Attorney  of  Issuing  Writ  of  Habeas 

Corpus 
To  H.  C, 

Prosecuting  Attorney  of  the  County  of 

Sir:— 

You  will  please  to  take  notice  that  a  writ  of  habeas  corpus  has  been 

issued  by  the  circuit  court  for  the  county  of   ,  to  inquire  into  the 

cause  of  the  imprisonment  of  C.  D.,  now  confined  in    (specify  the 

place),  under  a  criminal  accusation,  and  that  the  said  writ  is  returnable 

before  the  said  circuit  court,  at ,  in  said  county,  on  the day 

of  ,  A.  D ,  at   o'clock  in  the   noon   (or,  fortli- 

with,  as  the  case  may  be). 

Dated,  etc.  Yours,  etc., 

J.  K., 
Attorney  for  C.  D. 
Business  address: 
,  Mich. 

Form  of  Notice  to  Party  Interested  of  Issuing  Writ  of  Habeas  Corpus 

To*E.  F.   (or,  to  K.  L.,  Attorney  for  E.  F.) 

Sir:— 

You  will  please  to  take  notice  that  a  writ  of  habeas  corpus  has  been 

issued  by  the  circuit  court  for  the  county  of    ,  to  inquire  into  the 

cause  of  the  imprisonment  of  C.  D.,  now  confined  in   (specify  the 

place)  on  process  under  which  you  have,  or  claim  to  have  (or,  under  which 
the  said  E.  I'\  has,  or  claims  to  have),  an  interest  in  continuing  the  said 
imprisonment  of  the  said  C.  D.,  and  that  the  said  writ  of  habeas  corpus  is 

returnable  before  the  said  circuit  court,  at   ,  in  said  county,  on  the 

(lay  of   ,  A.  D ,  at   o  'clock  in  tlio   noon. 

Dated,  etc. 

Yours,  etc., 

J.  K., 
Attorney  for  C.  D. 
Business  address: 
,  Mich. 

§  24.  Hearing-  and  other  proceedings  upon  return  of  cer- 
tiorari. 
[Tpon  return  being  made  of  a  writ  of  certiorari,  tbe 
court  or  officer  befoi-e  whom  it  is  retui'iia))le  sliould  ]>ro- 

ee.Tud.    Act,   ch.   :!7,    S.'{r>;    Comjt. 
Laws  191  f),  8  i:?487. 


916  Habeas  Corpus  §  24 

ceed  in  the  same  manner  as  upon  the  return  of  a  writ 
of  habeas  corpus  and  hear  the  proofs  of  the  parties  in 
support  of  and  against  the  return." 

If  it  appears  that  the  prisoner  is  illegally  imprisoned, 
confined  or  restrained  of  his  liberty,  the  court  should 
make  an  order  that  those  having  him  in  their  custody 
discharge  him  forthwith.  If  it  appears  that  the  prisoner 
is  legally  detained,  imprisoned  or  confined  and  is  not 
entitled  to  be  bailed,  the  court  or  officer  should  cease  from 
all  further  proceedings  in  the  matter.*^'  If  it  appears 
that  the  prisoner  is  entitled  to  bail,  the  court  or  officer 
should  make  an  order,  directing  the  sum  in  Avhich  he 
shall  be  held  to  bail  and  the  court  at  which  he  shall  be 
required  to  appear,  and  that,  on  such  bail  being  entered 
into  in  conformity  to  such  order  and  the  provisions  of 
law,  the  prisoner  be  discharged.^® 

Upon  the  production  of  an  order  letting  a  prisoner  to 
bail  to  any  circuit  court  commissioner  of  the  county  in 
which  the  prisoner  is  detained  or  to  any  judge  of  a  court 
of  record,  he  is  authorized  to  take  the  recognizance  of  the 
prisoner  and  of  two  sufficient  sureties  in  the  sum  directed 
in  the  order,  conditioned  for  the  appearance  of  the  pris- 
oner at  the  coui"t  designated  in  the  order.  But,  previous 
to  taking  the  recognizance,  tlie  officer  must  be  satisfied 
by  the  oath  of  the  persons  offering  themselves  as  sure- 
ties that  they  are  residents  of  the  county  and  are  sever- 
ally worth  double  the  sum  in  which  they  are  required  to 
be  bound,  over  and  above  all  demands  against  them.'" 
The  judge  or  commissioner  taking  the  recognizance 
should  file  it  with  the  clerk  of  the  court  before  which  the 
prisoner  is  bound  to  appear  and  certify  on  the  order  the 
compliance  therewith.     The  production  of  the  order  so 

67Jiul.    Act,  ch.    87,  §;!9;    Ooinp.  69  Jml.    Aft,    ch.    .".7,    §42;    Comp. 

Laws   19ir),   §13491.  Laws  191.1,  §18494. 

68, hid.   Act,   ch.   :57,  §40;    Comp.  70Jiul.   Act,   ch.   'M ,    §4.1;    Comp. 

Laws  191.'5,  §  i:!492.  Laws  1915,  §  13495. 


§  27  Habeas  Corpus  917 

certified  will  entitle  the  prisoner  to  be  discharged  from 
imprisonment  for  the  cause  returned  to  the  certiorari.'^ 

§  25.  Proceeding's  in  case  of  disobedience  of  order  for 
discharge. 

Obedience  to  an  order  for  the  discliarge  of  a  prisoner 
may  be  enforced  by  the  court  or  officer  granting  the  order 
by  attachment  in  the  same  manner  as  in  case  of  neglect 
to  make  return  to  a  writ  of  habeas  corpus  and  with  the 
like  effect  in  all  respects,  and  the  person  guilty  of  such 
disobedience  will  be  liable  to  the  party  aggrieved  in  the 
sum  of  one  thousand  dollars  damages,  in  addition  to  any 
special  damages  which  he  may  have  sustained."^^  No 
sheriff  or  other  officer  will  be  liable  to  any  civil  action  for 
obeying  any  order  of  discharge,  and  if  action  is  brought 
against  him  for  suffering  any  person  committed  to  his 
custody  to  go  at  large  pursuant  to  such  order,  he  may 
give  evidence  thereof  under  his  plea  of  the  general  issue 
in  bar  of  the  action.'^ 

§  26.  Habeas  corpus  after  certiorari  issued  or  applied  for. 

Notwithstanding  a  writ  of  certiorari  has  been  issued 
or  returned,  the  court  or  officer  before  whom  the  writ  was 
returnable  may  issue  a  writ  of  habeas  corpus,  the  pro- 
ceedings upon  which  will  be  the  same  as  in  other  cases 
in  which  the  writ  of  habeas  corpus  is  issued.  If  a  court 
or  officer  has  refused  to  allow  a  writ  of  certiorari,  or, 
upon  the  return  of  a  writ  of  certiorari,  refuses  to  dis- 
charge the  person  detained,  if  such  person  claims  a  writ 
of  habeas  coi'pus,  he  will  be  entitled  to  it  ns  in  other 
cases.'* 

§  27.  Discharge  as  former  jeopardy. 

No  person  who  has  been  discharged  by  the  order  of 
any  court  or  officer  upon  a  ha])eas  corpus  or  certiorari 

71.Tiu].   Act,  eh.   37,  §44;    Conip.  TS.Jiul.    Act,   eh.   37,    §46;    Coinp. 

Laws  1915,  §  i;{496.  Laws  \9\ri,  §13498. 

72.THd.   Act,   eh.   ?i7,  §4.');    Comp.  74  J  ml.   Act,   oh.   .37,   §41;    Comp. 

Laws  \9iri,   §13497.  Laws  19in,  §  13493. 


918  Habeas  Corpus  §  27 

can  be  again  imprisoned,  restrained  or  kept  in  custody 
for  the  same  cause.  But  it  will  not  be  deemed  the  same 
cause,  (1)  if  he  has  been  discharged  from  a  commitment 
on  a  criminal  charge  and  is  afterwards  committed  for 
the  same  of^'ense  by  the  legal  order  or  process  of  the  court 
wherein  he  is  bound  by  recognizance  to  ai)pear,  or  in 
whicli  he  is  indicted  or  convicted  for  the  same  offense;'^ 
or  (2)  if,  after  a  discharge  for  defect  of  proof  or  for  any 
material  defect  in  the  commitment  in  a  criminal  case, 
the  prisoner  is  again  arrested  on  sufficient  proof  and 
committed  by  legal  process  for  the  same  otfense;  or  (3) 
if,  in  a  civil  suit,  the  party  has  been  discharged  for  any 
illegality  in  the  judgment  or  process  and  is  afterwards 
imprisoned  by  legal  process  for  the  same  cause  of  action; 
or  (4)  if,  in  any  civil  suit  in  which  process  may  lawfully 
issue  against  the  body,  he  has  been  discharged  from  com- 
mitment on  original  process  and  is  afterwards  committed 
on  execution  in  the  same  cause,  or  on  original  process  in 
any  other  suit  after  the  first  suit  has  been  discontinued.''® 

§  28.  Punishment  for  re-imprisonment. 

If  any  person,  eitliei'  solely  or  as  a  meml)er  of  any 
court,  or  in  the  execution  of  any  order,  judgment  or 
])rocess,  knowingly  re-commits,  imprisons  or  restrains 
of  his  liberty,  or  causes  to  be  re-committed,  imprisoned 
or  restrained  of  his  libeity,  for  the  same  cause,  any  per- 
son discharged  upon  a  writ  of  habeas  corpus  or  cer- 
tiorari, or  knowingly  aids  or  assists  therein,  he  will  be 
liable  to  the  party  aggrieved  in  the  sum  of  one  thousand 
dollars  damages  and  will  also  be  deemed  guilty  of  a  mis- 
demeanoi*." 

75In  re  Reinheimer,  97  Mich.  610.  77.Tii(l.    Act,   ch.   :>,1,    S48;    Comp. 

•rejiid.   Act,   ch.   .-57,    §47;    Comp.       T,a\vs  lOl.'"),  S  i:5500. 
Laws    1915,    §1:1499;    In    re    Rein- 
heimer, 97  Mich.  619;  In  re  Collins, 
l.if)  Mich.  91. 


§  30  Habeas  Corpus  919 

§  29.  Warrant  before  issuing  of  habeas  corpus  or  cer- 
tiorari. 

Whenever  it  appears  by  satisfactory  proof  that  any 
one  is  held  in  illegal  confinement  or  custody  and  that 
there  is  good  reason  to  believe  that  he  will  be  carried 
out  of  the  state  or  suffer  some  irreparable  injury  before 
he  can  be  relieved  by  the  issuing  of  a  habeas  corpus  or 
certiorari,  any  court  or  officer  authorized  to  issue  those 
writs  may  issue  a  warrant,  reciting  the  facts  and  directed 
to  any  sheriff,  constable  or  other  person,  commanding 
him  to  take  the  prisoner  and  forthwith  bring  him  before 
such  court  or  officer  to  be  dealt  with  according  to  law."'^' 
When  the  proof  is  also  sufficient  to  .instify  the  aiTest  of 
the  person  having  the  prisoner  iu  his  custody  as  for  a 
criminal  offense  committed  in  taking  or  detaining  the 
prisoner,  the  warrant  should  also  contain  an  order  for 
the  arrest  of  such  person  for  such  offense.'® 

Any  officer  or  person  to  whom  such  warrant  is  directed 
is  required  to  execute  it  by  bringing  the  prisoner  tiierein 
named,  and  the  person  who  detains  him  if  so  connnanded 
by  the  warrant,  before  the  court  or  officer  issuing  it,  and 
thereupon  the  person  detaining  the  prisoner  must  make 
a  return  in  like  manner,  and  the  like  proceedings  are  to 
be  had  as  if  a  writ  of  habeas  corpus  had  been  issued  in 
the  first  instance.*" 

If  the  person  having  the  prisoner  in  liis  custody  is 
brought  before  the  court  or  officer  as  for  a  criminal  of- 
fense, he  nuist  be  examined  and  committed,  biiiled  or  dis- 
charged in  like  manner  as  in  otlier  criminal  cases  of  the 
like  nature.*^ 

§30.  Costs. 

The  prevailing  party  in  a  habeas  corpus  or  certiorari 

VS.Tud.   Act,   ch.   37,  §52;    Comp.  SO.Tu.l.    Act,   ch.    37,   §54;    Coinp. 

Laws  1915,  §13504.  Luus  1915,  §13506. 

79Jud.   Act,   ch.   37,  §53;    Coinp.  BlJud.    Act,  cli.   37,    §55;    Comp. 

Laws  1915,  §  13505.  Laws  1915,  §  13507. 


920  Habeas  Corpus  §  30 

proceeding  may  recover  his  costs  in  tlie  discretion  of  the 
court. *^ 

§  31.  How  habeas  corpus  proceedings  reviewed. 

It  was  once  lield  that  the  supreme  court  would  review 
the  determination  of  a  circuit  court  in  a  habeas  corpus 
proceeding  by  writ  of  error,*'  but,  in  hiter  cases,  it  was 
hehl  that  such  proceedings  before  a  cii'cuit  judge  at 
chambers,  not  being  according  to  the  course  of  the  com- 
mon law  in  the  sense  in  which  that  expression  is  applied 
to  proceedings  reviewable  on  writ  of  error,  are  not  re- 
viewable on  writ  of  error,  and  tliat  the  proper  method 
of  review  is  by  certiorari;  "  and  now  it  is  held  that  cer- 
tiorari is  the  writ  by  whicli  the  supreme  court  reviews 
all  such  habeas  corpus  proceedings  as  are  reviewable 
and  that  a  writ  of  error  does  not  lie  in  any  case.*^  And 
likewise  it  is  held  that  mandamus  does  not  lie.'® 

In  reviewing  habeas  corpus  proceedings,  the  supreme 
court  can  only  determine  whether  the  prisoner  is  law- 
fully imprisoned.  It  cannot  amend  or  modify  the  sen- 
tence under  which  he  is  imprisoned,*'  and  it  will  not 
weigh  the  evidence.'* 

§  32.  Habeas  corpus  ad  testificandum. 

Every  court  of  record  has  power,  upon  the  application 
of  any  party  in  any  suit  or  proceeding,  civil  or  criminal, 
pending  in  the  court,  to  issue  a  writ  of  habeas  corpus  for 
the  purpose  of  bringing  before  the  court  any  prisoner 
who  is  detained  in  any  jail  or  prison  within  this  state,  to 
be  examined  as  a  Avitness  in  the  suit  or  proceeding  in 

82.Jucl.   Act,   ch.   37,    §57;    Conip.  85  In  re  Brock,  144  Mich.  42. 

Laws   1915,    §1.3509;    In   re   Knott,  86  Attorney  General  v.  Daboll,  90 

162  Mich.  10.  Mich.  272. 

83  In  re  Hicks,  20  Mich.  129.  87  In  re  Hamilton,  188  Mich.  499. 

84  People  v.  Calhoun  Circuit  88  In  re  Sneden,  105  Mich.  61; 
Judge,  30  Mich.  266;  People  v.  Fair-  Corie  v.  Corie,  42  Mich.  509;  Car- 
man, 59  Mich.  568;  People  v.  Con-  penter  v.  Carpenter,  149  Mich.  138; 
ant,  59  Mich.  565.  Smith  v.  Kiel,  150  Mich.  417. 


§  32  Habeas  Corpus  921 

behalf  of  the  party  making  the  api)licati()n,  except  that 
a  person  under  sentence  for  a  felony  cannot  be  so  brought 
up  in  any  civil  cause. ®^ 

The  application  for  the  writ  must  be  verified  and 
state: 

1,  The  title  and  nature  of  the  suit  or  proceeding  in 
regard  to  which  the  testimony  of  the  prisoner  is  desired. 

2.  That  the  testimony  of  the  prisoner  is  material  and 
necessary  to  the  party  on  the  trial  or  hearing  of  the  suit 
or  proceeding,  as  he  is  advised  by  counsel  and  verily  be- 
lieves.®" 

The  writ  may  be  issued  not  only  by  the  court  in  which 
the  suit  or  proceeding  is  pending,  but  also  by  any  justice 
of  the  supreme  court,  judge  of  a  circuit  court  or  any  offi- 
cer authorized  to  perform  the  duties  of  circuit  judge, 
upon  the  application  of  a  party  to  a  suit  or  proceeding- 
pending  in  a  court  of  record  or  before  any  officer  or  body 
authorized  to  examine  witnesses  in  a  suit  or  proceed- 
ing.®^ 

It  is  the  duty  of  the  officer  to  whom  a  writ  of  habeas 
corpus  ad  testificandum  is  delivered  to  obey  and  return 
the  writ  according  to  its  command  in  the  manner  and  in 
the  time  prescribed  by  law.  For  neglecting  or  refusing 
so  to  do,  he  is  liable  to  the  party  on  whose  application 
the  writ  was  issued  in  the  sum  of  five  hundred  dollars.®^ 

Whenever  a  person  is  in  execution  on  any  civil  process 
or  committed  on  a  criminal  charge,  and  a  writ  of  habeas 
corpus  is  issued  to  bring  him  before  a  court,  officer  or 
body  to  testify  or  to  answer  for  any  contempt  or  other 

89Jii(l.    Act,    cli.    37,  §1;    Com]).       was  issiu'il  oa  the  applii'ation  of  the 

Laws  1915,  §  1345.3.  Attorney   General   or   a   prosecuting 

eO.Tud.  Act,  ch.  37,  S2;  Comp.  attorney,  the  officer  neglecting  or  re- 
Laws  1915    §  13454.  fusing  to  execute  the  writ  is  liable 

91  .Tud.    Act,   ch.    37,  §  3;    floinj).       to  the  [)eoph^  of  this  state  in  the  sum 

Laws  1915,   §  13455.  of    live   hundred    dollars,      .lud.    .\ct, 

92Jud.    Act,    ch.    37,  8  6;    Comp.       ch.     ;!7,     SG;     Comp.     [,aws     1915, 

Laws    1915,    §  13458.  If    the    writ       §  13458. 


922  Habeas  Corpus  §  32 

matter,  and  it  is  returned  ii])on  the  writ  that  the  pris- 
oner is  so  charged  in  execution  or  is  so  committed,  he 
must  be  remanded  after  having  testified,  and,  if  an  order 
of  commitment  be  made  against  him,  he  must  be  so  com- 
mitted to  tlie  prison  from  which  he  was  takon.^^ 

"  Form  of  Petition  for  Habeas  Corpus  ad  Testificandum 

(Title  of  the  cause.) 

To  the  Ciiciiit  Court  for  the  County  of (or,  To  the  Honorable  J.  S., 

Judge  of  the  Circuit  Court  for  the  County  of )  : 

The  petition  of  A.  B.,  the  above-named  plaintiff,  respectfully  sliows: 

1.  That  this  action  is  brought  to  recover  (state  the  nature  of  the  action). 

2.  That  the  defense  thereto  is  (state  the  defense  briefly). 

3.  That  your  petitioner  has  fully  and  fairly  stated  the  facts  pertaining 

to  this  cause  to  J.  K.,  his  counsel  therein,  who  resides  at   ,  and  has 

fully  and  fairly  disclosed  to  his  said  counsel  what  he  expects  to  prove 
by  W.  S. 

4.  That  the  testimony  of  the  said  W.  S.  is  material  and  necessary  for 
your  petitioner  on  the  trial  of  this  cause,  as  he  is  advised  by  his  said  coun- 
sel, upon  such  statement  and  disclosure  as  aforesaid,  and  verily  believes; 
and  that,  without  the  benefit  of  the  testimony  of  the  said  W.  S.,  your 
petitioner  cannot  safely  proceed  to  the  trial  of  this  cause,  as  he  is  also 
advised  by  his  said  counsel,  upon  such  statement  and  disclosure  as  afore- 
said, and  verily  believes. 

5.  That  this  cause  is  for  trial  at  the  next  term  of  this  court,  appointed 
to  be  held  on  the day  of ,  A.  D 

6.  That  the  said  W.  R.  is  now  a  prisoner  in  the  custody  of  the  sheriff 
of  the  county  of ,  for   (state  for  what  he  is  in  custody). 

Your  petitioner   therefore   prays  that  a   writ   of  habeas  corpus  may   be 

issued,  directed   to  the  sheriff  of  the  said  county  of    ,  commanding 

him  to  bring  before  this  court  the  said  W.  S.,  to  be  examined  as  a  witness 
on  the  trial  of  this  cause  in  behalf  of  your  petitioner. 

A.  B. 
J.  K.,  Attorney  for  Plaintiff. 

Business  address:    ,  Mich. 

(Add  verification.) 

Form  of  Habeas  Corpus  ad  Testificandum 
In  the  Name  of  the  People  of  tlie  vState  of  Michigan. 

To  the  Sheriff  of  the  County  of   ,  Greeting: 

We  command  you  that  you  have  the  body  of  W,  S.,  detained  in  prison 
in  your  custody,  as  it   is  said,  under  safe  and   secure  conduct,  before  the 

93.Tud.    Act,    ch.    ?,7,    S.');    Comp. 
Laws  1915,  §  13457. 


§  1  Homesteads  92:3 

circuit  court  for  the  county  of ,  on  the   day  of ,  A.  D. 

,   to  testify   in   a   certain   cause  now  pending  in   said   circuit  court, 

then  and  there  to  be  tried  between  A.  B.,  as  plaintiff,  and  0.  D.,  as  defend- 
ant, on  behalf  of  the  said  plaintiff  (or,  defendant),  and,  immediately  after 
the  said  W.  S.  shall  then  and  there  have  given  his  testimony  in  said  cause, 
that  you  return  him  to  said  prison  under  safe  and  secure  conduct;  and 
have  you  then  and  there  this  writ. 
Witness,  etc. 

HANDWRITING 

See  Evidence  (comparison  of). 

HARMLESS    ERROR 

See  Ekkok,  Wkit  of. 

HEIRS 

Sec  Executions;  Waste. 

HIGHWAYS 

See  Certiorari. 

HOGS 

Sec  Animals;  Exemptions. 

HOLIDAYS 

See  Courts,  §  14. 

HOMESTEADS 

§  1.  statutory  exemplion  in  general. 
§  2.  Procedure. 

§3.  When  homestead  claimed  exceeds  in  value  lifteen  hundred  dollars. 

§  4.  Effect  of  deatli  of  owner  of  homestead. 
§  5.  Waiver. 

Cross-Ecfcrciicc:     Exemptions   (general  rules  as  to). 

§  1.  Statutory  exemption  in  general. 

The  coiistitulioii  of  tliis  stale  providt'S  tliat  cvcrv 
homestead  of  not  exceeding  forty  acres  ^  of  land  and  tlic 
dwellino-  house  thereon  and  the  apiniitonances,  to  be 
selected  by  the  owner  thereof,  and  not  included  in  any 

1  Forty-one  acres  are  not  exempt. 
Jlolley  V.  Ilorton,  KM  Micii.  31. 


924 


Homesteads 


§1 


town  i>lat,  city  or  village,  or,  instead  thereof,  at  the 
option  of  the  owner,  any  lot  in  any  city,  village  or  re- 
corded town  i)lat,  or  snch  parts  of  lots  as  shall  be  equal 
thereto,  and  the  dwelling  house  thereon  and  its  appurte- 
nances, owned  and  occupied  by  any  resident  of  the  state, 
not  exceeding  in  value  fifteen  hundred  dollars,  shall  be 
exempt  from  forced  sale  on  execution  or  any  other  final 
process  from  a  court.^  The  statute  substantially  reiter- 
ates the  constitutional  provision,  but  purports  to  limit 
the  exemption  to  executions  or  other  final  process  for 
"debts  growing  out  of  or  founded  on  contract,  either  ex- 
press or  implied."  ^    It  is  obvious  that  the  constitutional 


2  Const.  Art.  XIV,  sec.  2;  Mc- 
Bride  v.  Putnam,  99  Mich.  469; 
Kaeding  v.  Joachimsthal,  98  Mich. 
78.  As  to  the  necessity  of  the  wife 
joining  in  a  conveyance  of  the  home- 
stead, see  Weaver  v.  Miehello,  193 
Mich.  572;  Dye  v.  Mann,  10  Mich. 
291;  Stevenson  v.  Jackson,  40  Mich. 
702;  Sammon  v.  Wood,  107  Mich. 
506;  Lott  V.  Lott,  146  Mich. 
580;  Rogers  v.  Day,  115  Mich.  664; 
Gadsby  v.  Monroe,  115  Mich.  282; 
Evans  v.  Grand  Rapids,  etc.,  R.  Co., 
68  Mich.  602;  Shoemaker  v.  Collins, 
49  Mich.  595;  Amphlett  v.  Hib- 
bard,  29  Mich.  298;  Fisher  v.  Meis- 
ter,  24  Mich.  447;  Ring  v.  Burt,  17 
Mich.  465;  McKee  v.  Wilcox,  11 
Mich.  .358;  Fournier  v.  Chisholm, 
45  Mich.  417;  Gardner  v.  Gardner, 
123  Mich.  673;  Allen  v.  Cadwell,  55 
Mich.  8;  Dikeman  v.  Arnold,  71 
Mich.  656;  H.  Stern,  Jr.  &  Bros. 
Co.  V.  Wing,  135  Mich.  331 ;  Phillips 
V.  Stauch,  20  Mich.  369;  Cleland  v. 
Clark,  123  Mich.  179;  Lawrence  v. 
Vinkemulder,  157  Mich.  294;  Mail- 
hot  v.  Turner,  157  Mich.  167;  Jas- 
per Tp.  V.  Martin,  161  Mich.  336; 
Cooper  V.  Cooper,  162  Mich.  304; 
Clement  v.  Buckley  Mercantile  Co., 


172  Mich.  243;  Way  v.  Root,  174 
Mich.  418;  Agar  v.  Streeter,  183 
Mich.  600;  Carlson  v.  Wisconsin 
Land  &  Lumber  Co.,  186  Mich.  212. 

Abandonment  of  homestead,  see 
Stotts  V.  Stotts,  198  Mich.  605;  Steel 
V.  Blanchette,  193  Mich.  167. 

3  Jud.  Act,  ch.  23,  §  73 ;  Comp. 
Laws  1915,  §  12888. 

Statutes  arc  to  be  liberally  con- 
strued in  favor  of  debtor.  Canney 
V.  Canney,  131  Mich.  363;  Barber  v. 
Rorabeek,  36  Mich.  399. 

Party  in  possession  need  not  have 
a  complete  title.  A  homestead  may 
be  claimed  in  land  Of  which  a  party 
is  in  possession  under  contract  to 
purchase.  In  such  case,  the  vendee, 
if  a  married  man,  cannot  alienate 
his  interest  in  the  land  under  the 
contract  without  his  wife  joining 
with  him,  and  if  he  refuses  or  neg- 
lects to  perform  his  contract  the 
wife  may  perform  it  for  him,  and 
have  the  land  conveyed  to  her  hus- 
band subject  to  a  lien  thereon  in 
her  favor  for  the  amount  she  pays 
in  fulfilling  the  contract.  McKee 
V.  Wilcox,  11  Mich.  358. 

The  constitution  exempts  a  home- 
stead as  an  entirety,  and  not  a  part 


§2 


Homesteads 


925 


exemption  is  not  so  limited  and  it,  rather  than  the  stat- 
ute, must  control,  so  that  the  exemption  extends  not 
merely  to  executions  u])<)n  judgments  in  actions  ex  con- 
tractu, but  also  to  those  in  actions  ex  delicto.* 

The  fee  of  the  land  is  not  exempt.  The  land  is  exempt 
only  as  a  homestead,  and,  subject  to  the  homestead 
right,  it  is  liable  to  levy  upon  execution.*  Any  person 
owning-  and  occupying  any  house  on  land  not  his  own, 
and  claiming  said  house  as  a  homestead,  is  entitled  to  the 
exemption.^ 

§2.  Procedure. 

The  statute  provides  that  whenever  a  levy  is  made 
upon  the  lands  and  tenements  of  a  householder  whose 


of,  or  an  undivided  interest  in  a 
lioniestead.  Amphlett  v.  Hibbard, 
29  Mich.  298. 

In  order  that  premises  may  Ije  ex- 
empt as  a  homestead  under  the  con- 
stitution and  laws  of  this  state,  they 
must  have  been  set  apart  as  a  home, 
and  for  the  purposes  of  tlie  owner 
and  his  family.  And  when  the 
owner  of  a  city  lot  built  a  double 
house  upon  it,  in  such  a  way  as  to 
show  that  he  designed  it  for  the  use 
of  two  families,  and  not  for  one,  and 
leased  one  part  of  it,  occupying  the 
other  part  of  it  himself,  it  was  lield 
that  lie  could  not  claim  the  whole 
as  exempt  from  execution  as  a  home- 
stead, although  the  entire  value  did 
not  exceed  fifteen  hundred  dollars. 
Dyson  v.  Sheley,  11  Mich.  527. 

Neither  the  constitution  nor  the 
statute  exempts  a  contemitlated  fu- 
ture homestead,  and  therefore  laud 
on  which  no  dwolliug-liouso  liad  ever 
been  erected  or  commenced,  and  on 
which  neither  the  owner  nor  his  fam- 
ily ever  resided,  is  not  a  homestead. 
Coolidge  V.  Wells,  20  Mich.  79. 


But  premises  having  the  legal 
properties  of  a  homestead,  and  occu- 
pied as  such  by  husband  and  wife, 
in  which  the  husband  has  only  an 
equitable  interest,  will  be  protected 
as  a  homestead,  notwithstanding  the 
legal  title  is  vested  in  the  wife,  and 
a  portion  of  it  is  occupied  for  busi- 
ness purposes.  Orr  v.  Schraft,  22 
Mich.  260. 

4Mertz  V.  Berry,  101  Mich.  52. 

6  Drake   v.  Kinscll,  38  Mich.  232. 

6Jud.  Act,  ch.  23,  §78;  Comp. 
Laws  1915,  §12893;  Maata  v.  Kip- 
pola,  102  Mich.  116. 

For  cases  bearing  upon  tlie  ques- 
tions of  the  abandonment  of  a  liomc- 
stead  and  of  the  necessity  of  actual 
occupancy,  see  Kaeding  v.  Joach- 
imsthal,  98  Mich.  78,  note  1. 

As  to  tlie  exemption  of  shares  in 
building  and  loan  associations,  see 
.Tud.  Act,  ch.  2.3,  §45;  Comp.  Laws 
1915,  §12860;  and  Morley  Bros.  v. 
National  Loan  &  Investment  Co., 
120   Mich.    171. 


926  Homesteads  §  2 

homestead  has  not  been  pUitted  and  set  apart  by  metes 
and  bounds,  such  householder  shall  notify  the  officer  at 
the  time  of  making  the  levy  what  he  regards  as  his  home- 
stead, with  a  description  thereof,  within  tlie  limits  al- 
lowed by  law,  and  the  remainder  alone  will  be  subject  to 
sale  under  such  levy.  If,  at  the  time  of  the  levy  the 
householder  fails  or  neglects  to  notify  the  officer  making 
the  levy  what  he  regards  as  his  homestead,  with  a  de- 
scription thereof,  the  officer  must  call  upon  him  to  make 
his  selection  of  a  homestead  out  of  the  land,  describing 
it  minutely.  If,  after  such  notice,  the  owner  of  the  land 
fails  to  select  his  liomestead,  the  officer  may  select  a 
homestead  out  of  the  land  for  him,  and  the  remainder 
over  and  above  that  part  selected  by  the  officer,  or  by  the 
owner  of  the  land,  as  the  case  may  be,  alone  will  be  sub- 
ject to  sale  under  the  levy.  If  the  selection  of  a  home- 
stead out  of  the  lands  levied  upon  is  made  by  the  officer, 
he  must  select  lands  in  compact  form,  which  include  the 
dwelling  house  and  its  appurtenances.' 

If  the  plaintiff  in  the  execution  is  dissatisfied  with  the 
quantity  of  land  selected  and  set  apart  either  by  the 
owner  of  the  land  or  by  the  officer  making  the  levy,  he 
may  cause  it  to  be  sui'\'eyed,  beginning  at  a  point  to  be 
designated  by  the  owner  or  l)y  the  officer  making  the 
levy,  and  set  off  land  in  compact  form,  including  the 
dwelling  house  and  its  appurtenances,  to  the  amount 
which  is  exempt.  The  expense  of  such  survey  may  be 
charged  and  collected  on  the  execution.® 

After  the  survey  has  been  made,  the  officer  may  sell 
the  property  levied  upon,  and  not  included  in  the  set-off, 
in  the  same  manner  as  is  provided  for  the  sale  of  real 
estate  in  other  cases;  and,  in  giving  a  deed  of  it,  he  may 
describe   the   property  according   to  the  original   levy, 

7Ju(l.    Act,    ch.    23,    §75;    Conii..  S.lud.    Act,    eh.    23,    §76;    Comp. 

Laws  1915,  §  12890.  Laws  1915,  §  12891. 


§  3  Homesteads  927 

excepting  therefrom  by  metes  and  bounds,  according  to 
the  certificate  of  the  survey,  the  quantity  set  off.* 

§3.  When    homestead   claimed   exceeds    in    value 

fifteen  hundred  dollars. 
Whenever  the  homestead  of  a  debtor  exceeds  in  value 
the  amount  of  fifteen  liundred  dollars,  he  will  not  for  that 
i*eason  lose  tlie  benefit  of  his  homestead  exemption;  but 
in  all  such  cases,  when,  in  the  opinion  of  the  creditor  or 
officer  holding  an  execution  against  him,  the  premises 
claimed  by  liim  as  exempt  are  worth  more  than  fifteen 
hundred  dollars,  the  officer  must  summon  six  persons 
qualified  to  act  as  jurors,  who,  upon  oath  to  be  adminis- 
tered to  them  by  the  officer,  must  appraise  the  premises; 
and  in  case  the  value  is  more  than  fifteen  hundred  dol- 
lars, and  the  premises  cannot  be  divided,  they  must  make 
and  sign  an  appraisal  of  its  value  and  deliver  it  to  the 
officer,  whose  duty  it  is  to  deliver  a  copy  to  the  debtor  or 
to  some  of  his  family  of  suitable  age  to  understand  its 
nature,  with  a  notice  attached  that,  unless  the  debtor 
shall  pay  the  officer  the  surplus  over  and  above  the  fifteen 
hundred  dollars,  or  the  amount  due  on  the  execution, 
within  sixty  days  thereafter,  the  premises  will  be  sold." 
And,  if  the  surplus  or  amount  due  on  the  execution  is  not 
paid  within  the  sixty  days,  it  is  lawful  for  the  officer  to 
proceed  to  advertise  and  sell  the  premises  and,  out  of  the 
proceeds  of  the  sale,  to  pay  the  debtor  the  sum  of  fifteen 
hundred  dollars,  which  will  be  exempt  from  execution 
for  one  year  thereafter,  and  apply  the  balance  on  the 
execution;  but  no  sale  can  be  made  in  such  case  unless 
>  a  greater  sum  than  fifteen  hundred  dollars  is  bid  for  the 
premises,  in  which  event  the  officer  may  return  the  execu- 

».Tu(l.    Act,    I'll.    2.!,    §77;    Comp.        lO.Tiul.    Act,   eh.   23,    SSO;    Comp. 
Laws  1915,   S  12892.     And  spe  Lii'))-   Laws   lOlfi,   S  1289rK 
lein  V.  Hanson,  178  Mi«-h.  11,  17. 


928  Homesteads  §  3 

tion  for  want  of  property  or  report  the  facts  to  the  court, 
as  the  case  may  require." 

§  4.  Effect  of  death  of  owner  of  homestead. 

The  homestead  of  a  family,  after  the  death  of  the  own- 
er thereof,  shall  be  exempt  from  the  payment  of  his  debts 
in  all  cases  during  the  minority  of  his  children. ^'^  If  the 
owner  of  a  homestead  die,  leaving  a  widow  but  no  chil- 
dren, such  homestead  shall  ])e  exempt,  and  the  rents  and 
profits  thereof  shall  accrue  to  her  benefit  during  the  time 
of  her  widowhood,  unless  she  be  the  owner  of  a  home- 
stead in  her  own  right. ^^  But  if  the  owner  leaves  no  wife 
nor  minor  children  on  his  death,  the  exemption  expires 
with  his  death. ^* 

§  5.  Waiver. 

No  waiver  of  the  homestead  right  can  affect  a  wife's 
interest  therein,  nor  the  interest  of  any  other  equally  en- 
titled thereto.^*  So  there  is  no  waiver  by  failure  to  claim 
an  exemption  until  an  appraisal  is  made  and  presented 
by  the  ofificer  making  the  levy.^^ 

HOUSEHOLD  GOODS 

See  Exemptions. 

HOUSEHOLDER 

See  Exemptions. 

HUSBAND  AND  WIFE 

See  Married  Women. 

HYPOTHETICAL   QUESTIONS 

See  Witnesses. 

llJud.   Art,   oh.   2.1,    §81;    Comp.  14  Brown  v.  Reiser,  182  Mioh.  4.12. 

Laws  19iri,  §12806.  15  Allen   v.  Crane,   152  Mich.  380. 

12  Const.  1908,  Art.  XIV,  sec.  ."..  10  Holley  v.  Horton,  164  Mich.  .31; 

13  Const.  1908,  Art.  XIV,  sec.  4.  Riggs  v.  Sterling,  60  Mich.   643. 


Infants  ^29 

IMPEACHMENT 

See  Witnesses;  Judges. 

IMPRISONMENT 

See    Commencement    of    ActioNvs;     Bail;     Contempt;     Executions; 
Fraudulent  Debtors;  Jail  Liberties;   Escape. 

IMPROVEMENTS 

See  Ejectment. 

INCOMPETENTS 

See  Guardians  ad  Litem,  etc. 

INCRIMINATING  EVIDENCE 

See  "Witnesses. 

INDEBITATUS   ASSUMPSIT 

See  Assumpsit. 

INDEMNITY 

See  Attachment;  Executions;  "Replevin, 

INDEX 

See  Supreme  Court;  Error,  Writ  of;  Briefs. 

INDICTMENT 

See  Summary  and  Special  Proceedings  to  Recover  Land, 

INDORSEMENTS 

See  Attachment;  Commencement  of  Actions;  Pleading;  Deposi- 
tions; Executions;  Papers;  Bail;  Supreme  Court;  Certiorari;  Habeas 
Corpus. 

INFANTS 

Infants  may  sue  by  tlioir  onnrdian  or  next  fiiond  and 
if  siiod  a  ftiiardian  ad  litem  is  ai)poiiit(»d  {^oo  rHiar«lians 

1  Abbott— .W 


•  *-!0  Infants 

ad  Litem,  etc.).  However,  infancy  postpones  the  stat- 
ute of  limitations  (see  Limitation  of  Actions)  and  ex- 
tends the  time  for  suing  out  a  writ  of  error  (see  Error, 
Writ  of).  If  a  child  under  the  age  of  ten  years  is  pro- 
duced as  a  witness,  the  court  must  examine  the  child  as 
to  whether  the  child  has  sufficient  intelligence  and  sense 
of  obligation  to  testify  (Jud.  Ad,  cli.  17,  ^08;  Comp. 
Laws  IDlf),  j;  12r)r>(5). 

INFORMATION   AND   BELIEF 

Sco  Commencement  of  Actions;  Attachment;  Fraudulent  Debtors; 
Garnishment. 

INFORMATION  IN  NATURE  OF  QUO  WARRANTO 

See  Quo  Warranto. 

INITIALS 

See  Affidavits. 

INJUNCTION 

See  Mandamus;  Stay  of  Proceedings;  Waste;  Executions.     To  stay 
trial  of  action  at  law,  see  .hid.  Act,  cli.  19,  S  8;  Comp.  Laws  lOlf),  S  12662. 

INSANE    PERSONS 

See  Guardians  ad  Litem,  etc 

INSOLVENT  DEBTORS 

See  Executions. 

INSPECTION 

See  Discovery,  etc.;   Mandamus;  Evidence. 

INSTALMENTS 

See    \rORTfiAOES. 


1 1  Instructions  to  Jury  'J^il 

INSTRUCTIONS   TO  JURY 

§    1.  Naturo  ami  ollioc  of  charge. 
§    2.  Writing  and  filing. 
§    3.  Eequests  to  charge. 

§    4.  Form,   requisites  and   sufficiency. 

§    5.  Necessity. 

§    6.  How  charge  construed. 

§    7.  Confining  to  issues  and  evidence. 

§    8.  Depriving  jury  of  determination  of  disputed  questions  of  fact. 

§    9.  Kespective  functions  of  court  and  jury  as  to  written  instruments. 

§  10.  Singling  out  particular  witnesses  or  evidence. 

§  11.  Charging  as  to  credibility  of  witnesses. 

§  12.  Charge  as  to  failure  to  produce  witnesses. 

§  13.  Charge  as  to  duties  of  jury. 

§  14.  Charge  as  to  result  of  verdict. 

§  15.  Charge  as  to  burden  of  proof,  etc. 

§  16.  Definition  of  terms. 

S  17.  Basing  belief  on  evidence. 

§  18.  Reading  from  law  books. 

§  19.  Curing  error  in  instructions. 

Cruss-Bcfcrenccfi:  Verdict  (spei-ial  questions  submitted  to  jury)  ;  ExCEP- 
Tlo5;s;    Error,   Writ  of    (iKirnile.ss  error,  etc.). 

§  1.  Nature  and  office  of  charg-e. 

The  office  of  the  judge's  charge  to  the  .jury  is  (1)  to 
exphiin  the  issues,  (2)  to  notice  the  position  taken  by  the 
parties  and  suggest,  so  far  as  the  case  may  require  it,  the 
principles  of  evidence  and  their  application,  and  (3)  to 
declare  what  rule  or  rules  of  law  will  be  a]i])lical)le  to  any 
state  of  facts  which  may  be  found  on  the  e\'i(U'nce.^  In 
charging  the  jury,  the  trial  court  should  fornudate  the 
legal  rules  to  guide  the  jury  in  the  case  before  them  with 
as  little  extraneous  combinati(m  as  possil)h>.  The  object 
of  a  charge  is  not  to  teach  law  to  the  jurors,  but  to  direct 
their  conduct  in  the  controversy  they  are  called  on  to 
decide.^  Concise  charges  are,  therefore,  not  only  com- 
mendable, but  essential  to  a  good  understanding  of  the 
case  by  tlie  jury,  and  a  charge  which  is  continuous  and 

1  Scouvais    V.    Leavitt,    50    Midi.  2  Leudberg     v.     Brotherton     Iron 

108.  Min.  Co.,  75  Mich.  84. 


932  IXSTRUCTIONS    TO    JuRY  §  1 

harmonious  is  bettor  understood  than  one  consisting-  of 
a  succession  of  abstract  propositions.'  While  not  com- 
mendabk',  the  preceding  particuhir  instructions  with  *'I 
am  asked  to  charge  you"  ordinarily  is  not  reversible 
error.* 

§  2.  Writing  and  filing. 

The  statute  provides  that,  in  all  jury  trials  in  courts  of 
record,  in  charging  or  instructing  juries,  the  court  shall 
instruct  them  only  as  to  the  law  of  the  case  and  that  such 
instructions  may  be  given  by  the  court  of  its  own  motion, 
and  requires  that  they  be  taken  in  full  by  the  court  ste- 
nographer or,  in  case  there  be  no  stenograi)lier,  that  they 
be  in  writing  and  filed  in  the  case.*  The  object  of  the 
statute  is  to  hold  circuit  judges  to  a  more  strict  account- 
ability and  to  insure  to  parties  the  benefit  of  all  legal  ex- 
ceptions.® But  if  the  statute  is  not  complied  with  by 
reason  of  the  omission  of  the  judge  to  reduce  all  of  the 
charge  to  writing,  a  party  who  desires  to  object  to  it 
must  do  so  before  the  juiy  has  gone  out.''^  Where,  how- 
ever, a  judge  reads  to  the  jury  a  section  of  a  public  stat- 
ute without  making  it  a  part  of  his  written  charge,  the 
parties  are  as  fully  protected  as  if  the  statute  were  copied 
mto  the  charge,  and  the  spirit  of  the  requirement  of  a 
charge  in  writing  is  complied  with.^ 

§  3.  Requests  to  charge. 

After  the  evidence  is  concluded  and  l)ei'ore  the  case 
is  argued  or  submitted  to  the  jury,  either  party  may  pre- 
sent written  requests  for  instructions  on  any  point  of 

8  Kinney   v.   Ferguson,   101    Mich.  6  Swartoiit   v.   Michigan   Air   Line 

178.            '  K.  Co.,  24  Mich.  389. 

4  Newton    v.    Consolidated    Const.  7  Garton  v.  Union  City  Nat.  Bank, 

Co.,  184  Mich.  6.'!.  VA   Mich.   279;    Jossolyn    v.   McAllis- 

6Jud.    Act,    ch.    18,    §58;    Conip.  tcr,  22  Mich.  300. 

Laws  1915,  §12630;  Newton  v.  Con-  8  Swartout   v.   Michigan    Air   Line 

solidated  Const.  Co.,  184  Mich.  63;  R.  Co.,  24  Mich.  389. 
Sheahan  v.  Barry,  27  Mich.  217. 


§  4  Instructions  to  Jury  933 

law  arising  in  tlie  cause,  and,  upon  such  written  requests 
so  presented,  an  argument  may  be  made  by  the  counsel 
for  the  resi^ective  parties  previous  to  the  court  passing 
tliereon.  Any  request  not  substantially  covered  by  the 
charge  as  given  will  be  deemed  to  be  refused.*  This  last 
sentence  of  the  Judicature  Act  abolishes  the  require- 
ment that  the  court  mark  each  request  to  charge  ** Given" 
or  ''Refused." 

In  respect  of  the  time  when  counsel  should  present 
to  the  court  requests  to  charge,  the  duties  of  counsel  and 
court  are  reciprocal; — that  of  counsel  in  good  faith  to 
present  such  requests  as  he  desires  the  court  to  give  the 
jury  in  time  to  enable  the  court  to  examine  them  before 
commencing  his  charge  to  the  jury,  and  that  of  the  court 
to  peraiit  counsel,  at  any  time  before  the  jury  has  re- 
tired, at  least  to  hand  in  any  further  requests  which  he 
might  consider  essential  to  a  proper  protection  of  the 
rights  and  interests  of  his  client.  Counsel  are  justified 
in  assuming  that  the  court  will  fully  cover  in  the  charge 
all  essential  parts  of  the  case,  and  if,  after  the  charge  has 
been  given,  they  see  that  some  essential  has  been  over- 
looked, no  practice  or  rule  of  court  adopted  for  mere  con- 
venience, as,  for  instance,  a  rule  requiring  requests  to 
charge  to  be  handed  to  the  court  before  the  argument  is 
commenced,  will  deprive  them  of  their  right  to  present 
a  request  covering  the  omission. ^° 

§  4.  Form,  requisites  and  sufficiency. 

Requests  to  cliai'go  should  be  based  upon  the  evidence 
in  the  case  "  and  be  pertinent  to  the  issue  which  is  being 

9.Jik1.    Act,    eh.    18,    §59;    Comp.  Louisville,  etc.,  R.  Co.  v.  Wood,  IK? 

Laws  1915,  §  12631.  Ind.    544;    Cluskey    v.    City    of    St. 

lOCrippen  v.  Hope,  .38  Mich.  344;  Louis,  50  Mo.  89;  Taylor  v.  Plum- 
People  V.  Garbutt,  17  Mich.  9;  Peo-  nier,  105  N.  C.  56;  Wetherby  v.  Fos- 
ple  V.  Demasters,  105  Cal.  673;  Har-  ter,  5  Vt.  136;  Cady  v.  Owen,  34 
nau  V.  Haight,  189  Mich.  600;  Brick  Vt.  598;  Manhattan  Life  Ins.  Co. 
V.  Bosworth,  162  Mass.  338;  Tully  v.  Francisco,  17  Wall.  (U.  S.)  672. 
V.  Despard,  31  W.  Va.  370.    Contra:  H  Canii>au  v.  City  of  Detroit,  104 


934 


Instructions  to  Jury 


§4 


tried.^^  They  should  not  be  based  upon  a  i)osition  not 
held  by  cither  paity,^^  nor  should  they  be  so  framed  as  to 
be  misleading,"  or  so  obscure  or  complex  as  not  readily 
to  be  understood  by  the  Jury.^^  Requests  should  be  ac- 
curate,*® unambiguous,*'''  specific,"  complete,**  and  not 
predicated  on  isolated  portions  of  the  testimony;^"  and 
where  relating  to  facts  nmst  make  an  application  of  such 
facts.^*  It  is  proper  to  refuse  a  request  which  simply 
embodies  propositions  of  fact,^^  or  consists  of  abstract 
propositions  of  law  the  application  of  which  to  the  case 
in  hand  would  not  be  readily  apparent  to  the  jury.'^^  But 
although  a  charge  in  tiie  language  of  the  request  would 
be  improper  or  absurd,  yet  a  refusal  to  charge  on  the 
subject  may  be  error.''*  Requests  should  be  refused 
which  assume  a  fact  as  existing  where  there  is  room  for 
finding  tliat  it  did  not  exist  or  no  room  for  finding  that 
it  did  exist.^*  It  is  not  error  to  refuse  a  requested  in- 
struction that  does  not  correctly  state  the  facts  which  it 
assumes,^''  or  one  which  is  argumentative  or  partly  good 


Mi<-h.  ofiO;  Pooplo  v.  Goseh,  82  Mit-li. 

12Lang(>  V.  Porley,  47  Mk-li.  ;'..J12 ; 
Pottilione  v.  Smith,  37  Mich.  579. 

13  Schoenberg  v.  Voigt,  36  Mich. 
;!10;  Welch  v.  Jackson,  etc..  Trac- 
tion Co.,  1.j4  Mich.  :!99. 

14  Holland  v.  Rea,  48  Mich.  218; 
McKercher  v.  Curtis,  35  Mich.  478; 
Kchrig  V.  Peters,  41  Mich.  476; 
Dodge  V.  Brown,  22  Mich.  446. 

IB  Schoenbergi  v.  Voigt,  36  Micii. 
310. 

16  Smith  V.  McDonahl,  139  Mich. 
225. 

17  Holland  v.  Rea,  48  Mich.  218. 

18  Herbstrcit  v.  Beckwith,  35 
Mich.  93. 

19  Clintsman  v.  Alfred  .7.  Brown 
Seed  Co.,   127  Mich.  280 

20  Foley  v.  Riverside  Storage  & 
Cartage  Co.,  85  Mich.  7, 


21  In  re  Barclay's  Estate,  146 
Mich.  650. 

22Sclioenberg  v.  Voigt,  36  Mich. 
310. 

23  Mosaic  Tile  Co.  v.  Chiera,  133 
Mich.  497. 

24  Dodge  V.  Brown,  22  Mich.  446. 

25  Lewis  v.  Rice,  61  Mich.  97; 
Parke  v.  Nixon,  141  Mich.  267; 
Place  V.  Place,  139  Mich.  509;  Mc- 
Netton  V.  Herb,  158  Mich.  525;  Con- 
nor V.  McRae,  193  Mich.  682;  Scitz 
V.  Starks,  144  Mich.  448;  Foley  v. 
Riverside  Storage  &  Cartage  Co.,  85 
Mich.  7;  Wilcox  v.  Young,  66  Mich. 
687;  Hunter  v.  Village  of  Durand, 
137  Mich.  53. 

26Conley  v.  Wood,  73  Mich.  903; 
Bourman  v.  Van  Buren,  44  Mich. 
496. 


H 


Instructions  to  Ji^p>y 


935 


and  partly  bad  or  which  is  inapplicable  to  the  case.^'  Noi- 
ls it  error  to  refuse  an  instruction  if  the  ground  of  it  is 
covered  by  the  general  charge.^*  It  is  not  error  not  to 
give  an  instruction  in  the  exact  form  and  language  re- 
quested, if  the  ground  is  fully  and  cori-ectly  covered  by 
equivalent   instructions   given   in   the   language   of   the 


27(ioul(l  V.  Sainidfjs,  09  Mich.  5; 
People  V.  Crawford,  40  Mich.  498; 
Feierta«'  v.  Fciertag,  73  Mich. 
2.'}7;  Sword  v.  Keith,  31  Mich.  247; 
Westchester  Fire  Ins.  Co.  v.  Earle, 
33  Mich.  143;  Bedford  v.  Penney, 
58  Mich.  424;  Wilcox  v.  Young,  66 
Mich.  687;  Beck  v.  Schick,  110 
Mich.  665;  Wood  v.  Standard  Drug 
Co.,  190  Mich.  654;  Courtemanehe  v. 
Supreme  Court  I.  O.  O.  F.,  136 
Mich.  30;  Bower  v.  Earl,  ]8  Mich. 
367;  Schoenberg  v.  Voigt,  36  Mich. 
310;. People  v.  Palmer,  105  Mich. 
568. 

28  Shearer  v.  Middleton,  88  Mich. 
621 ;  Moore  v.  City  of  Kalamazoo, 
109  Mich.  176;  People  v.  Hubbard, 
92  Mich.  322;  Hurd  v.  Newton,  36 
Mich.  35;  Ellis  v.  Whitehead,  95 
Mich,  105;  Hart  v.  Village  of  New 
Haven,  130  Mich.  181;  Styles  v.  Vil- 
lage of  Decatur,  131  Mich.  443 ; 
Stevens  v.  Pendleton,  94  Mich.  405; 
Roux  V.  Blodgett  &  D.  Lumber  Co., 
94  Mich.  607;  Parkey  v.  Calloway, 
147  Mich.  693;  Sweet  v.  Western 
Union  Tel.  Co.,  139  Mich.  322;  Fer- 
ris V.  McQueen,  94  Mich.  267;  Peo- 
ple V.  Hare,  57  Mich.  506;  Comstoek 
V.  Georgetown  Tp.,  137  Mich.  541  ; 
Finkbinder  v.  Ernst,  135  Mich.  226; 
Power  v.  Harlow,  57  Mich.  107;  Van 
Den  Brooks  v.  Correon,  48  Mich. 
283;  Dawson  v.  Falls  City  Boat 
Club,  125  Midi.  4:5.3;  Lott  v.  Sweet, 
33  Mich.  308;  Leonard  v.  Pojje,  27 
Mich.  145;  Bates  v.  Kuney's  Estate, 
124   Mich.   596;    TJenand   v.   City   of 


Bay  City,  124  Mich.  29;  Daniels  v. 
(;iegg,  28  Mich.  32;  Hoyt  v.  Jeffers, 
30  Mich.  181  ;  Joslin  v.  Le  Baron, 
44  Mich.  160;  Chilson  v.  Wilson,  38 
Mich.  267;  Cooper  v.  Mulder,  74 
Mich.  .■i74;  Keables  v.  Christie, 
47  Mich.  594;  Westra  v.  Westra 's 
Estate,  101  Mich.  526;  Champlain  v. 
Detroit  Stamping  Co.,  68  Mich.  238 ; 
Crane  Lumber  Co.  v.  Otter  Creek 
Lumber  Co.,  79  Mich.  307;  Saunders 
v.  Gloss,  117  Mich.  130;  People  v. 
Hilliard,  119  Mich.  24;  Mahiat  v. 
Codde,  106  Mich.  387;  Brundage  v. 
Shelly,  113  Mich.  20;  Eeilly  v,  Con- 
way, 121  Mich.  682;  Arndt  v. 
Burke,  120  Mich.  263;  Ellis  v. 
Whitehead,  95  Mich.  105;  People  v. 
Berry,  107  Mich.  256;  Darling  v. 
Thompson,  108  Mich.  215;  People  v. 
ILammond,  177  Mich.  416;  People  v. 
Quimby,  134  Mich.  625;  People 
v.  Swartz,  118  Mich.  292;  Harris  v. 
Stewart,  112  Mich.  82;  Canfield  v. 
City  of  Jackson,  112  Mich.  120; 
Wright  V.  Irwin,  35  Mich.  ;{47; 
Breitenwischer  v.  Clough,  116  Mich. 
:!40;  Peojile  v.  Weaver,  108  Mich. 
649;  Schattler  v.  Daily  Herald  Co., 
162  Mich.  115;  Chapman  v.  Strong, 
162  Mich.  631;  Feist  v.  Root,  189 
Mich.  596;  Tiley  v.  Detroit  United 
Ry.,  190  Mich.  7;  Wood  v.  Standard 
Drug  (;o.,  190  Mich.  654;  Parnell 
v.  Pnngs,  190  Mich.  638;  Miller  v. 
DuVal,  191  Mich.  386;  Snyder  v. 
East  Bay  Lumber  f!o.,  135  Midi, 
31;  People  v.  Cutler,  197  Mich.  6. 


936 


Instructions  to  Jitry 


eourt.^'  But  if  a  party's  theory  of  the  case  is  supported 
by  some  evidence,  he  is  entitled  to  have  it  presented  to 
the  jury  in  the  charge  of  the  court,'"  and  a  specific  request 
for  such  instruction  would  be  improperly  refused,  unless 
the  instruction  asked  for  is  fully  covered  by  the  general 
charge. ^^  In  the  absence  of  ]:)ositive  error,  however,  a 
party  who  has  presented  no  requests  to  charge  cannot 
comphiin  that  his  theory  of  the  case  was  not  pi'operly 
presented  to  the  jury,'^  especially  when  the  court  at  the 
conclusi(m  of  his  charge  asks  counsel  if  anything  has 
been  overlooked. '^    Instructions  to  the  jury  which  cover 


29  Campau  v.  Dubois,  39  Mich. 
274;  Lewis  v.  Rice,  61  Mieh.  97; 
Continental  Ins.  Co.  v.  Horton,  28 
Mich.  173;  Clark  v.  Eiee,  46  Mich. 
308;  Westra  v.  Westra's  Estate,  101 
Mich.  .526;  Barshow  v.  Lake  Shore, 
etc.,  R.  Co.,  147  Mich.  226;  People 
V.  Parsons,  105  Mich.  177;  Alton 
V.  Meeuwenberg,  108  Mich.  629; 
Com.stock  V.  Georgetown  Tp.,  137 
Mich.  541;  People  v.  Hubbard,  92 
Mich.  322;  Kendrick  v.  Towle,  60 
Mich.  363;  Sword  v.  Keith,  31  Mich. 
247;  Pound  v.  Port  Huron,  etc.,  R. 
Co.,  54  Mich.  13;  Piewaty  v.  Shel- 
don, 167  Mich.  218;  Stevens  v.  Pen- 
dleton, 94  Mich.  405;  Fisher  v. 
People,  20  Mich.  135;  Schweyer  v. 
Jones,  152  Mich.  241;  Conroy 
V.  Haffner,  182  Mieh.  289;  Heddle 
V.  City  Electric  R.  Co.,  112  Mieh. 
547;  Smith  v.  McDonald,  139  Mich. 
225;  Houser  v.  Carmody,  173  Mich. 
121 ;  American  Seed  Co.  v.  Cole,  174 
Mich.  42;  Keenan  v.  City  of  Mt. 
Pleasant,  176  Mich.  620;  People  v. 
Breen,  192  Mich.  39;  People  v. 
Hoek,  169  Mich.  87;  People  v.  Kar- 
aniol,  173  Mich.  354;  People  v.  De 
Fore,  64  Mich.  693;  People  v.  Mc- 
Clintic,  193  Mieh.  589;  Simon  v. 
Detroit   United  Ry.,   196  Mich.  586. 


SODikeman  v.  Arnold,  71  Mich. 
656;  Wildey  v.  Crane,  69  Mich.  17; 
Miller  v.  Miller,  97  Mich.  151;  Al- 
ton V.  Meeuwenberg,  108  Mich.  629; 
Welling  V.  Kalamazoo  Lumber  Co., 
177  Mich.  340;  Commercial  Bank  v. 
(!liatfield,  121  Mich.  641;  Comstock 
V.  Norten,  36  Mieh.  277;  Winches- 
ter V.  King,  46  Mich.  102. 

31  O  'Callaghan  v.  Boeing,  72  Mich. 
669;  Cooj)er  v.  Mulder,  74  Mich. 
374;  Babbitt  v.  Bumpiis,  73  Mich. 
331  ;  People  v.  Parsons,  105  Mich. 
177;  Carrel  v.  Kalamazoo  Cold 
Storage  Co.,  112  Mich.  34;  People 
V.  Jacks,  76  Mieh.  218. 

32  Record  Pub.  Co.  v.  Merwin,  115 
Mich.  10;  Hitchcock  v.  Knights  of 
Maccabees,  107  Mich.  391;  Wolf  v. 
Holton,  110  Midi.  166;  Ward  v. 
Cook,  158  Mich.  283;  Hydrex  Silent 
Exhaust  Works  v.  Scager  Engine 
Works,  189  Mich.  431;  Minds  v. 
Keyes,  189  Mich.  629;  Alderton 
V.  Williams,  139  Mich.  296;  Proulx 
V.  Bay  City,  143  Mich.  550;  Da- 
vis V.  McMillan,  142  Mich.  391; 
Peterson  v.  Toner,  80  Mich.  357; 
Rankin  v.  West,  25  Mich.  195; 
Sjiringer  v.  Fuller,  196  Mich.  628. 

33Wiik  V.  Black,  188  Mich.  478; 
West  V.   Hudson,  171   Mich.  669. 


§  4  Instructions  to  Jury  937 

all  the  essential  features  of  the  case  are  sufficient;  if 
counsel  desire  more  explicit  instructions,  they  should 
present  their  requests  to  the  court. ^* 

Where  a  request  to  instruct  is  in  plain  and  simple  form, 
it  should  be  given  without  change,  where  proper,  and  its 
omission  is  error  unless  its  substance  has  been  as  well 
given  by  the  court  in  its  own  language.^®  It  has  been 
held  the  duty  of  the  court  to  use,  if  possible,  the  precise 
words  contained  in  the  request  to  charge;^®  but  the 
general  rule  is  that  the  exact  language  need  not  be  fol- 
lowed if  all  that  is  proper  and  pertinent  is  contained 
therein.^'  It  is  i)roper  to  refuse  requested  instructions 
and  in  lieu  thereof  for  the  judge  to  charge  in  his  own 
words,'®  provided  the  ground  is  fully  and  correctly  cov- 
ered.'® AVhere  a  requested  instruction  is  partly  errone- 
ous, the  judge  may  refuse  it  and  is  not  obliged  to  rewrite 
it  to  cure  the  error.***  It  is  proper  practice  and  com- 
mendable for  the  trial  court  to  extract  from  requests  to 

34Mahiat    v.     Coddo,     106    Mich.  Bokenfolir  v.   Busli,   117   Midi.  444; 

387;  Eecord  Pub.  Co.  v.  Merwin,  115  Miller  v.  Shuniway,  135  Mich.  654; 

Mich.  10;  Barnett  v.  Farmers'  Mut.  Record    Pub.    Co.    v.    Merwin,    115 

Fire  Ins.  Co.,  115  Mich.  247;  Rankin  Mich.    10;    Beath    v.   Cliapoton,   124 

V.   West,   25   Mich.   195;    Hollywood  Mich.     508;     McDonald     v.     Smith, 

V.    Reed,    55    Mich.    308;    Hitchcock  139  Mich.  211 ;  Alderton  v.  Williams, 

V.  Supreme  Tent  Knights  of  Macca-  139  Mich.   296;    Major  v.   Brewster, 

bees,  107  Mich.  391;  Lynch  v.  John-  148  Mich.  623. 

son,    109    Mich.     640;     Peterson    v.  36  Babbitt    v.    Bumpus,    73    Mich. 

Toner,  80  Mich.  350;   Pray  v.  Cad-  331. 

well,  50  Mich.  222 ;  Barton  v.  Gray,  36  Cook  v.  Brown,  62  Mich.  473. 

57   Mich.   622;   Vernon   v.   Cornwell,  37  Alton      v.      Nceuwenberg,      108 

104  Mich.  62;  People  v.  Willett,  105  Mich.  629;  Lewis  v.  Rice,  61   Mich 

Mich.   110;   Davis  v.  Michigan   Cen-  97.       See     also     Smith     v.     McDon- 

tral  R.  Co.,  147  Mich.  479;   Pichard  aid,   139   Mich.   225;    Moore   v.   City 

V.  Bryant,  92  Mich.  430;   Kinney  v.  of  Kalamazoo,   109  Mich.   176. 
Folkorts,   84   Mich.    616;    Merrinanc  38  Pound  v.  Port  Huron  &  S.  W. 

V.  Miller,  148  Mich.  412;   Crowell  v.  Ry.  Co.,  54  Mich.  13. 
Truax,  94  Mich.  585 ;   Howry  v.  Ep-  39  Campau    v.    Dubois,    39    Mich, 

pinger,  34  Mich.  35;  Hovey  v.  Michi-  274. 

gan   Tel.   Co.,   124   Mich.   607;    Kar-  40  Williams    v.    City    of    Lansing, 

wick    V.    Pickands,    181    Mich.    169;  152  Mich.  169. 
Little   V.   Williams,   107    Mich.    652; 


938 


Instructions  to  Jury 


§4 


chari2:e  such  matters  as  sliould  be  explained  to  the  jury, 
weaving  them  into  a  charge  which,  from  its  continuity 
and  liarmony,  will  be  better  understood  than  a  succession 
of  abstract  propositions  would  be.*^ 


§5. 


Necessity. 


The  trial  judge  should  present  the  substantial  issues 
of  the  case,  and  the  principles  of  law  governing,  with- 
out regard  to  whether  any  specific  instructions  are  re- 
quested.*^ And  it  is  expressly  provided  by  statute  that 
the  charge  or  instructions  may  be  given  by  the  court  of 
its  own  motion.  But  a  party  who  requests  no  instructions 
cannot  complain  that  the  court  failed  to  intelligently 
present  his  case  to  the  jury."  And  failure  to  give  a 
particular  instruction  is  not  error,  in  the  absence  of  a  re- 
quest to  so  charge,"  This  applies,  inter  alia,  to  an  in- 
struction as  to  the  burden  of  proof.*^  So  where  a  party 
desires  a  fuller  charge  than  that  given  by  the  court,  he 
must  request  more  specific  instructions.*^ 


41  Kiiuu'V  V.  Ferguson,  101  Mich. 
178. 

42  Barton  v.  Gray,  57  Mich.  622. 
43,  Hitehcock   v.   Supreme   Tent   of 

Knights  of  Maccabees  of  the  World, 
107  Mich.  .".91. 

44  Karwick  v.  I'ickauds,  181  Mi<-li. 
169;  Alderton  v.  Williams,  139  Mich. 
296;  Lamb  v.  Lamb,  161  Mich.  80; 
McDonald  v.  Smith,  i;}9  Mieh.  211; 
Hovey  v.  Michigan  Telejjhone  Co., 
124  Mich.  607;  Barnett  v.  Farmers' 
Mut.  Fire  Ins.  Co.,  ll.j  Mich.  247; 
Lynch  V.  .Johnson,  109  Mich.  640; 
Little  V.  Williams,  107  Mich. 
652;  Eecord  Pub.  Co.  v.  Merwin, 
115  Mich.  10;  Bokenfohr  v.  Bush, 
117  Mich.  444;  Miller  v.  Shumway, 
l.''>5  Mieh.  654;  Vernon  v.  Cornwell, 
104  Mich.  62;  Crowell  v.  Truax,  94 
Mich.  585;  Fraser  v.  Haggerty,  86 
Mich.     521 ;     Kinney     v.     Folkerts, 


84  Mich.  616;  Peterson  v.  Toner,  80 
Mich.  ;;50;  Little  v.  Williams,  107 
Mich.  652;  Sandler  v.  Bresnahan, 
54  Mich.  .342;  Cook  v.  Perry,  4:5 
Mich.  62;;;  White  v.  Campbell,  25 
Mich.  46:5.  But  see  Wright  v.  De- 
troit, G.  H.  &  M.  Ry.  Co.,  77  Mich. 
123. 

Judgment  will  not  be  reversed  for 
incorrectly  stating  the  issues  unless 
the  court 's  attention  is  called  to 
such  errors.  Wood  v.  Wells,  103 
Mich.   320. 

45  Beath  v.  Chapoton,  124  Mich. 
508;  Major  v.  Brewster,  148  Mich. 
623. 

46  Schneider  v.  C.  H.  Little  Co., 
200  Mich.  361;  Hartwig  v.  Kell, 
199  Mich.  603;  Bischoff  v.  Harris, 
198  Mich.  59;  Hammond  v.  Porter, 
1.50  Mich.  328;  TJlmer  v.  Seelman, 
159  Mich.  253;  Logan  v.  Lake  Shore 


6 


IXSTRUCTIOXS    TO    JuEY 


939 


§  6.  How  charge  construed. 

The  charge  of  the  court  to  the  jury  must  be  considered 
and  constiiied  as  an  entirety,  and  not  by  excerpts  apart 
from  the  context.*'''  Undue  weight  shoukl  not  be  given 
to  any  portion  of  it,*®  and  if  it  is  correct  as  a  whole,  it 
will  be  sustained,  although  parts  of  it,  standing  alone, 
may  seem  o)),jeetiona])le.*^  If  part  of  it  is  correct  and 
part  of  it  incorrect,  it  will  generally  be  presumed  tliat 
the  jury  followed  the  incorrect  part.^° 


&  M.  S.  Ry.  Co.,  148  Midi.  (iO;;; 
Davis  V.  Michigan  Cent.  R.  Co.,  147 
Mich.  479;  Crossette  v.  Jordan,  132 
Mich.  78;  Barnett  v.  Farmers'  Mut. 
Fire  Ins.  Co.,  115  Mich.  247;  Ma- 
hiat  V.  Codfle,  106  Mich.  387 ;  Barton 
V.  Gray,  57  Mich.  622;  Pickard  v. 
Bryant,  92  Mich.  430;  Pray  v.  Cad- 
well^  50  Mich.  222;  Rankin  v.  West, 
25  Mich.  195.  See  also  Major  v. 
Brewster,  148  Mich.  623;  Merrinano 
V.  Miller,  148  Mich.  412;  Alderton  v. 
Williams,  139  Mich.  296. 

47  Schneider  v.  C.  H.  Little  Co., 
200  Mich.  361 ;  People  v.  Finley,  :!8 
Mich.  482;  McGinnis  v.  Kempsey, 
27  Mich.  363;  Coots  v.  Chanilu-r- 
lain,  39  Mich.  565;  Merchants'  Bank 
V.  Ortmann,  48  Mich.  419;  Provost 
V.  Brueck,  110  Mich.  136;  Burdick 
V.  Michael,  3,2  Mich.  246;  Knney  v. 
Dutcher,  56  Mich.  308;  Daniels  v. 
Clegg,  28  Mich.  32;  Wheeler  &  Wil- 
son Mfg.  Co.  V.  Walker,  41  Mich. 
239;  Frankel  v.  Coot.s,  41  Mich.  75; 
Greenlee  v.  Lowing,  35  Mich.  64; 
Driscoll  V.  People,  47  Mich.  413; 
Marshall  v.  Wabash  R.  Co.,  184 
Mich.  .593;  Bcattie  v.  City  of  De- 
troit, 137  Mich.  319;  Kunst  v.  Rin- 
gold,  116  Mich.  88;  Eggleston  v. 
Boardman,  37  Mich.  14;  Dibble  v. 
Nash,  47  Mich.  589;  Ck'vel.nnd  v. 
Miller,  94  Mich.  97;  Russell  v. 
Phelj.s,   42   Mich.   377;    Whelpley   v. 


Stoughton,  119  Mich.  ;!14;   Welch  v. 
Ware,  32  Mich.  77. 

48  Eggleston  v.  Boardman,  37 
Mich.  14;  Seoley  v.  Swift  &  Co.,  151 
Mich.  545. 

49  Coots  V.  Chamberlain,  39  Mich. 
565;  Lyon  v.  Watson,  109  Mich. 
390;  Bouma  v.  Dubois,  169  Mich. 
422;  Whelpley  v.  Stougliton,  119 
Mich.  314;  Pi'ovost  v.  Brueck,  ll(t 
Mich.  136;  Cleveland  v.  Miller, 
94  Mich.  97;  Kuney  v.  Dutcher,  56 
Mich.  ;!08;  Beattie  v.  City  of  De- 
troit, 1:17  Mich.  319;  Greenlee  v. 
Lowing,  35  Mich.  64 ;  People  v. 
Finley,  38  Mich.  482;  Watson  v. 
Watson,  58  Midi.  .",08;  Wheeler  & 
Wilson  Mfg.  Co.  v.  Walker,  41  Mich. 
239;  Brown  v.  McCord  &  Bradfield 
Furniture  CV).,  65  Mich.  360;  Kunst 
v.  Ringold,  116  Mich.  88;  Wegner 
V.  Herkimer,  167  Mich.  587;  An- 
derson Carriage  Co.  v.  Pangs,  153 
Mich.  580;  Frolich  v.  Independent 
Glass  Co.,  173  Mich.  428;  West  v. 
Hudson,  171  Mich.  669;  .lordon  v. 
Wixsoii,  189  Mich.  288;  Rouse  v. 
Michigan,  etc.,  R.  ('o.,  158  Mich. 
109;  Butler  v.  Rockett,  191  Mich. 
499;  Swan  v.  Gregory,  195  Mich. 
457;  Hall  v.  City  of  Flint,  195 
Mi<di.  6:!S. 

50  Williams  v.  Bailey,  186  Mich. 
677;  Lamb  v.  Clam  Lake  Tp.,  175 
Mich.     77;      Rntlibone     v.      Detroit 


940 


Instructions  to  Jury 


§7 


§  7.  Confining  to  issues  and  evidence. 

The  charge  sliould  be  confined  to  the  issue  made  by  the 
pleadings,*^  and  should  not  embody  theories  or  proposi- 
tions of  law  which,  although  correct  in  the  abstract,  are 
not  supported  by  the  evidence  in  the  case  on  trial.*'^  The 
court,  in  stating  the  evidence,  should  state  that  which 
supports  the  theories  of  both  parties,^'  but  it  is  error  for 
a  judge  to  submit  a  case  to  the  jury  upon  an  entirely  dif- 
ferent tlieory  than  that  claimed  in  the  declaration  and 
upon  whicii  tlu'  case  was  tried  by  both  ])ai'ties.^* 

§  8.  Depriving  jury  of  determination  of  disputed  ques- 
tions of  fact. 

It  is  an  elementary  rule  that,  in  the  determination  of 
(piestions  of  law  and  fact,  the  judge  and  the  jury  are  re- 
spectively independent,  and  neither  is  to  invade  the 
province  of  the  other,  questions  of  law  being  for  the 
judge  and  questions  of  fact  for  the  jury.^^ 


United  Ry.,  187  Mich.  586;  Orand 
Rapids,  etc.,  R.  Co.  v.  Monroe,  47 
Mich.  152;  Madill  v.  Curry,  168 
Mich.  .546;  Lamb  v.  Township  Clam 
Lake,  175  Mich.  77;  Bayne  v.  Ever- 
ham,  197  Mich.  181;  Silverstone  v. 
London  Assurance  Corp.,  176  Mich. 
525;  In  re  Foerster's  Estate,  193 
Mich.  440;  Barrett  v.  Connecticut 
Fire  Ins.  Co.,  195  Mich.  209. 

61  Denman  v.  Johnston,  85  Mich. 
.'587;  Pettibone  v.  Smith,  'M  Mich. 
579;  Lange  v.  Perley,  47  Mich.  .3.52; 
Comstock  V.  Norton,  36  Mich.  278; 
Swartout  v.  Lucas,  101  Mich.  609. 

52  Folkerts  v.  Standish,  55  Mich. 
463;  Dodge  v.  Brown,  22  Mich.  446; 
Leslie  v.  Smith,  32  Mich.  64;  Selig- 
nian  v.  Ten  Eyck's  Estate,  60  Mich. 
267;  People  v.  Gosch,  82  Mich.  22; 
Koehler  v.  Buhl,  94  Mich.  496;  Far- 
rand  V.  Aldrich,  85  Mich.  593; 
Brown  v.  Metropolitan  Life  Ins.  Co., 


65  Mich.  .''.Oe;  Hewitt  v.  Begole,  22 
Mich.  31 ;  People  v.  Jones,  24  Mich. 
215;  Chadwick  v.  Butler,  28  Mich. 
349;  Hudnut  v.  Gardner,  59  Mich. 
341 ;  Moynahan  v.  Connor,  30 
Mich.  136;  Rogers  v.  Ferris,  107 
Mich.  126;  Wilson  v.  Crosby,  109 
Mich.  449;  Colby  v.  Portman,  115 
Mich.  95;  Fors  v.  Fors,  159  Mich. 
156;  Lunde  v.  Detroit  United  Ry., 
177  Mich.  374. 

63  Banner  v.  Schlessinger,  109 
Mich.  262 ;  Hennig  v.  Globe  Foundry 
Co.,  112  Mich.  616;  Wildey  v.  Crane, 
69  Mich.  17;  Miller  v.  Miller,  97 
Mich.  151;  American  Cushman  Tel. 
Co.  V.  Noble,  98  Mich.  67. 

64  Reed  v.  Gould,  93  Mich.  :'.59; 
Pettibone  v.  Smith,  37  Mich.  579; 
Comstock  V.  Norton,  36  Mich.  278; 
Her  V.  Baker,  82  MicJi.  226. 

56Mawich  v.  Elsey,  47  Mich.  10. 


§8 


Instructions  to  Jury 


941 


The  court,  therefore,  must  not  take  away  from  the  jury 
the  decision  of  any  question  of  fact  in  respect  to  which 
the  evidence  is  not  all  one  way,*®  or  assume  in  the  charge 
a  controverted  fact  as  admitted  or  undisputed."  But 
uncontested  facts  should  not  be  treated  as  open  ques- 
tions; and  where  the  evidence  upon  a  point  is  uncon- 
tradicted" or  where  there  is  an  entire  absence  of  evi- 
dence bearing  upon  it,°'  it  should  not  be  submitted  to  the 
jury.  Where,  however,  the  evidence  upon  a  matter  of 
fact  is  contradictory,  it  is  for  the  juiy  to  determine  upon 
which  side  lies  the  preponderance  of  the  evidence.®"    It 


56  Sheahan  v.  Barry,  27  Mich.  217 ; 
Williams  v.  Sheldon,  61  Mich.  .'511  ; 
Wisner  v.  Davenport,  5  Mich.  501 ; 
Turner  v.  Phoenix  Ins.  Co.,  .5.')  Mich. 
2:!6;  Somcrs  v.  Losoy,  48  Mich.  294; 
Myron  v.  Michigan  C!ent.  R.  Co.,  61 
Mich.  387;  McKay  v.  Doty,  iVA  Mich. 
581;  Shakespeare  v.  Baughman,  IIM 
Mich.  551;  Seiber  v.  Price,  26  Mich. 
518;  Fruit  Dispatch  Co.  v.  Russo, 
125  Mich.  306;  Harris  v.  Woodford, 
98  Mich.  147. 

67  Weyburn  v.  Kipp's  Estate,  6.'. 
Mich.  79;  Hughos  v.  Detroit,  G.  H. 
&  M.  Ry.  Co.,  65  Midi.  10;  Hood  v. 
Olin,  68  Mich.  165;  Wilcox  v. 
Young,  66  Mich.  687;  Mallory  v. 
Ohio  Farmers'  Ins.  Co.,  90  Mich. 
112;  People  v.  Schick,  75  Mich.  592; 
Weidman  v.  Synies,  116  Mich.  619; 
Lange  v.  Wiegand,  125  Midi.  647. 

58  Wright  V.  Towle,  67  Mich.  255; 
Sdigman  v.  Ten  Kyck 's  Estate,  49 
Midi.  104;  Corbett  v.  Spencer,  6:i 
Mich,  731;  Lange  v.  Perley,  47  Mich. 
:'.52;  Medina  Tp.  v.  Perkins,  48 
Mich.  67;  Druse  v.  Wheeler,  26 
Mich.  189;  Oavigan  v.  Evans,  45 
Mich.  .597;  Hunt  v.  Supreme  Coun- 
cil of  Chosen  Friends,  64  Mich.  671  ; 
Wood  V.  Wells,  lO:;  Mich.  :120;  Clark 
V,  McCraw,  14  Mich.  i:i9;  Mooney  v. 


York  Iron  Co.,  82  Mich.  263;  Cil- 
lett  V.  Knowles,  97  Mich.  77;  Op- 
somere  v.  Opsomere,  167  Mich.  636; 
O'Brien  v.  Brotherhood  of  American 
Yeomen,  183  Mich.  86. 

59Byles  v.  Golden,  .52  Mich.  612; 
Lane  v.  Pere  Marquette  Boom  Co., 
62  Mich,  63;  Hart  v.  Firzlaff,  67 
Mich.  514;  Fourth  Nat.  Bank  v. 
Olney,  63  Mich.  58;  June  v.  Laha- 
die,  132  Mich.  135;  Johnston  v. 
Elm  Cooiierage  Co.,  188  Mich.  117; 
Mortensen  v.  Bradshaw,  188  Mich. 
4;!6;  Hewitt  v.  Begole,  22  Mich.  31  ; 
Dondero  v.  Frumveller,  61  Mich. 
440;  Dodge  v.  Brown,  22  Mich.  446; 
('hadwick  v.  Butler,  28  Mich.  349; 
Rasch  v.  Bissell,  52  Mich,  455;  Van 
Hosen  v.  Cameron,  .54  Mich.  609; 
Goff"  v.  Cougle,  118  Mich.  .307. 

60  Russell  V.  Phelps,  42  Mich.  377 ; 
Winchester  v.  King,  48  Mich.  280; 
Kelly  V.  Emery,  75  Mich.  147;  Mc- 
intosh V.  Mcintosh,  79  Mich.  198; 
Swan.son  v.  Menominee  Electric 
Light,  etc.,  Co.,  113  Mich,  603;  Me- 
lodic V.  Chicago,  etc.,  R.  Co.,  116 
Mich.  69;  Woodin  v.  Durfee,  46 
Mich.  424;  Jones  v.  Michigan  Cent. 
R.  Co.,  .59  Mich.  437;  Hill  v.  Gra- 
ham, 72  Mich.  6.59;  King  v.  .\nn 
Arbor  R.  Co.,   137  Mich.  487. 


042 


IXSTRUCTIOXS    TO    JuRV 


follows  that  the  credil)ility  of  witnesses  and  the  weight 
to  be  attributed  to  other  evidence  are  for  the  .jury  and 
not  for  the  judge.^^  And,  as  a  general  rule,  the  infer- 
ences to  be  drawn  from  tlie  facts  proved  are  to  be  made 
by  the  jury.^^  It  is  objectionable  for  the  court  to  express 
his  o])inion  of  the  facts,  cither  directly  or  by  calling  tlie 
.'itlciition  of  tile  jury  to  particulai'  items  of  evidence  in 
such  a  way  as  either  to  give  them  undue  prominence  or 
1o  liii-ow  discre<lit  u]M)u  them.*^^ 


§  9.  Respective  functions  of  court  and  jury  as  to  written 
instruments. 

Tiu'  (piestion  of  tlie  identity  of  the  words  in  a  written 
instrument  is  for  the  jury.*^*.  The  construction  to  be 
l)lnced  upon  such  words  is  for  the  court. ^^  If  the  con- 
struction to  be  placed  upon  a  wi-itten  insti'ument  depends 


61  Poojilo  V.  Titclior,  1")  M'u^li. 
:i07;  Sebrlglit  v.  Mooio,  I'.:'.  Midi. 
92;  Spalding  v.  Lowe,  ofi  Midi.  'Mu  ; 
Frasor  v.  Raggorty,  8(5  Midi.  .")21  ; 
Wilson  \-.  Ilotdikiss'  Estate,  81 
Midi.  172;  Dilthlo  v.  NortluM'n 
Assiir.  Co.,  70  Midi.  1;  Andovson  v. 
Micliigaii    (Viit.     R.    Co.,    107    Midi. 

noi. 

62  People  v.  (iastro,  7")  Midi.  127; 
Harlow  V.  Jasejili,  18.1  Midi.  500. 

63  Babbitt  V.  P.iinipus,  T.',  Midi. 
:;:;i  ;  Webster  v.  Hibley,  72  Midi. 
(i.'iO;  Wilson  v.  ITotehkiss'  Estate, 
81  Midi.  172;  Fraser  v.  Haggerty, 
.S()  Midi.  521;  Banner  v.  Sdilessiii- 
ger,  109  Midi.  262;  Chase  v.  Biilil 
Iron  Works,  55  Mieh.  i;59;  Maltliy 
V.  Pliimnier,  71  Midi.  578;  Sterling 
V.  Callahan,  94  Midi.  5;'.(i;  Davidson 
V.  Kolt),  95  Midi.  469;  People  v. 
Colerick,  67  Mich.  .•;62 ;  Kdly  v. 
Emory,  75  Mich.  147;  Hoddle  v. 
City  Electric  R.  Co.,  112  Mich.  .547; 
Burrows  v.  Delta  Transp.  (!o.,  106 
Midi.    582;     Anderson    v.    Mii'liigan 


Cent.  R.  Co.,  107  Mich.  591;  Pres- 
ton Nat.  Bank  v.  Mii-liigan  Mut. 
Fire  Tiis.  (;o.,  115  Mich.  511;  Valin 
V.  McKerreghan,  104  Mich.  2U; 
Philpott  V.  Kirkpatrick,  171  Mich. 
495;  V/alts  v.  Walts,  127  Mich.  607; 
Wessels  v.  Beeinan,  87  Mich.  481. 

64Pnine  v.  Ringold,  4:5  Mich.  341. 

65  Thompson  v.  Pidiards,  14  Mich. 
172;  Curtis  v.  Mart/,  14  Mich.  .506; 
McKen/.ie  v.  Rykes,  47  Mich.  294; 
(iage  V.  Meyers,  59  Mich.  ;!00 ;  Rtad- 
deii  V.  Ilazzard,  :;4  Mich.  76;  Bat- 
tershall  v.  Stephens,  34  Mich.  68; 
Tlionipkins  v.  (Gardner  &  Spry  Co., 
69  .Midi.  58;  I'aiiie  v.  Ringold,  4;{ 
Midi.  ;;41;  Dudgeon  v.  Haggart,  17 
Mich.  273;  Van  Buren  Div.  of  To- 
ledo, etc.,  R.  Co.  V.  Lamphear,  54 
Mich.  575;  Lajieer  Co.  Fanner's 
Mut.  Fire  Ins.  Ass'u  v.  Doyle,  30 
Mich.  159;  Wagner  v.  Egloston,  49 
Mich.  218;  Slater  v.  U.  S.  Health, 
etc.,  Ins.  Co.,  i:!3  Mich.  347;  Rice  v. 
Rankans,  101  Mich.  378;  Brown  v. 
Sdiiapjiacasse,  115  Mich.  47. 


§10 


Instructions  to  Jury 


943 


upon  c'xtiiiisic  facts  the  true  state  of  which  is  to  be 
found  by  the  jury,  it  is  none  the  less  true  that  the  instru- 
ment nuTst  be  construed  by  the  court,  and,  in  such  case, 
as  the  court  could  not  lind  the  facts  nor  the  jury  con- 
strue the  instrument,  the  jury  sliould  Ije  told  what  would 
be  the  proper  construction  upon  the  different  states  of 
fact  which  might  be  found  by  thcm.^^ 

§  10.  Singling  out  particular  witnesses  or  evidence. 

The  court  should  not  give  undue  prominence  to  certain 
witnesses  or  evidence,®'''  and  need  not  charge  how  the  jury 
shall  find  if  they  find  a  certain  way  as  to  particular  facts 
in  the  case,®^  and  should  not  give  undue  prominence  to  a 
particular  witness  by  charging  the  jury  to  find  according 
to  their  belief  or  disbelief  in  his  evidence,®^  nor  give  un- 
due prominence  to  that  part  of  his  evidence  favorable 
to  one  part}^  only,'''"  nor  indicate  the  views  of  the  court  as 
to  the  credibility  of  a  particular  witness  or  witnesses,''^^ 


66  Curtis  V.  Martz,  14  Midi.  .jU(i; 
Tliompkius  v.   Gardner  &   Spry   Co., 

69  Mich.  58;  Cutler  v.  Spens,  191 
Mich.  603;  Powers  v.  Cary,  64  Me. 
9;  Zenor  v.  Johnson,  107  Ind.  69; 
Cunningham  v.  Washburn,  119  Mass. 
227;  Smith  v.  Faulkner,  12  Gray 
(Mass.)  251  ;  Ganson  v.  Madigan,  15 
Wis.  144;  Hutchinson  v.  Bowker,  5 
Moes.  &  W.  535. 

67Philpott  V.  Kirkpatrick,  171 
Mich.  495;  Card  v.  Fowler,  120  Mich. 
646;  Webster  v.  Sibley,  72  Mich. 
630;  People  v.  Colerick,  67  Midi. 
362;  Seitz  v.  Starks,  144  Mich.  44S ; 
J.  Eichardson  &  Co.  v.  Noble,  143 
Mich.  546.    See  Schenk  v.  Dunkelow, 

70  Mich.  89;  Merchants'  Bank  of 
Canada  v.  Ortmann,  48  Mich.  419. 

68Beurmnnn  v.  Van  Buren,  11 
Mich.  49(5;  People  v.  Detroit  cV:  S. 
Plank   Road   Co.,   131    Mich.  30. 

69  People    v.     Simpson,    48    Mich. 


474;  Grand  Rapids  &  I.  R.  Co.  v. 
Judson,  34  Mich.  506;  Westchester 
Fire  Ins'.  Co.  v.  Earle,  33  Mich.  143 ; 
Chase  v.  Buhl  Iron  Works,  55  Mich. 
139.  See  also  Henderson  v.  Detroit 
Citizens'  St.  Ry.  Co.,  116  Mich.  368. 
Compare  Harker  v.  Detroit  United 
Ry.,  150  Mich.  697. 

70  Banner  v.  Schlessinger,  109 
Mich.  262. 

71  Williams  v.  City  of  West  Bay 
City,  119  Mich.  395  (reversible  er- 
ror) ;  Kelly  v.  Emery,  75  Mich.  147; 
Wheeler  v.  Wallace,  53  Mich.  355; 
Id.,  53  Mich.  364;  Nicholson  v. 
Dyer,  45  Mich.  610.  See  also  Maltby 
V.  Plummer,  71  Mich.  578. 

Instruction  "there  is  evidence 
also,  whatever  you  may  think  of  the 
evidence,"  stating  it,  does  not  dis- 
(•re<iit  witness  whose  testimony  is  re* 
ferred  to.  Davidson  v.  Kolb,  95 
Mich.   469. 


944  Instructions  to  Jury  §  10 

but  if  the  court  expressly  directs  the  jury  to  decide  for 
themselves  without  reference  to  his  views  there  is  gener- 
ally no  error/^  unless  the  instructions  imply  a  duty  on 
the  part  of  the  jury  to  yield  their  judgment  to  that  of 
tlie  judge. '''^  It  is  proper  to  refuse  to  call  the  attention 
of  the  jury  to  particular  parts  of  the  evidence  on  a  given 
point,'''*  and  it  is  not  good  practice  for  the  trial  judge  to 
select  a  portion  of  the  evidence  and  give  it  prominence 
by  instructing  the  jury  that  they  should  consider  it.'^  So 
it  is  ordinarily  improper  to  instruct  that  the  sole  ques- 
tion for  the  jury  is  the  truth  of  the  evidence  of  a  party, 
since  it  involves  the  dangerous  consequences  of  a  differ- 
ence of  opinion  as  to  what  he  testified  to.'^  But  where 
the  evidence  is  brief,  and  limited  to  the  two  parties,  it 
has  been  held  proper  to  instruct  that  if  the  jury  believed 
defendant's  testimony,  plaintiff'  could  not  recover.''''' 

§  11.  Charging  as  to  credibility  of  witnesses. 

It  is  proper  to  instruct  as  to  the  law  relating  to  cred- 
ibility of  witnesses  and  such  an  instruction  should  be 
given  on  request  in  a  proper  case.'''    For  instance,  it  is 

72Shcaliaii  v.  Barry,  27  Mich.  217.  v.  Nortliern  Assurance  Co.,  70  Mich. 

V3  Bluiiicno  V.  Grand  Eapids  &  I.  1 ;  Grand  Rapids  &  I.  R.  Co.  v.  Mar- 

R.   Co.,   101   Mich.   325.  tin,  41  Mich.  667. 

74  Baunian      v.      Pere      Marquette  Instruction   that   if   ,i"'"y   believed 

Boom  Co.,  66  Mich.  544.    An  instruc-  any   witness   for   defendant   testified 

tion   singling   out   certain   testimony  under  fear  of  losing  his  employment, 

and  stating  its  effect  is  properly  re-  etc.,  such   fact   might  be  considered 

fused.      First    Nat.    Bank   v.    Union  by   jury   in   weighing   liis  testimony, 

Trust  Co.,  \')8  Mich.  94.  held    erroneous    in    Gregory    v.    De- 

76  McKinnon     Boiler    &     Machine  troit  United  Ry.  Co.,  l.'iS  Mich.  .■'>68. 

Co.   V.   Central   Michigan   Land   Co.,  Instructions  as  to  effect  of  wilfully 

156  Mich.  11.  swearing    falsely,    see    O  'Rourke    v. 

76  Hastings  v.  Boland,  136  Mich.  O 'Rourke,  43  Mich.  58;  Hillman  v. 
240.  Schenck,  68  Mich.  293 ;  Cole  v.  Lake 

77  Laviolette  v.  Alberts,  126  Mich.  Shore  &  M.  S.  Ry.  Co.,  95  Mich. 
96.  77;    Malinowski    v.    Detroit    United 

78  See  Lovely  v.  Grand  Rapids  &  Ry.,  154  Mich.  104;  Knowles  v.  Peo- 
I.  Ry.  Co.,  137  Mich.  653;  Conkey  pie,  15  Mich.  408;  Marcott  v.  Mar- 
V.   Carpenter,    106   Mich.    1;    Dibble  quette,    H.    &   O.    R.    Co.,   49    Mich. 


§  11  Instructions  to  Jury  945 

error  to  refuse  to  charge  that  the  jury  should  consider 
the  fact  testified  to  by  a  witness  that  he  was  hired  to  de- 
tect viohitions  of  the  local  option  law,  and  that  such  fact 
should  be  considered  in  determining-  the  credit  to  be 
given  to  his  evidence.'®  So  where  there  is  evidence  that 
a  witness  is  demented,  it  is  proper  to  charge  that  if  the 
jury  believes  from  the  evidence  that  the  witness  is  with- 
out sufficient  mental  capacity  to  understand  what  is  go- 
ing on,  they  cannot  consider  his  testimony.'"  So  where 
a  witness  is  shown  to  have  been  convicted  of  crime,  it  is 
proper  for  the  court  to  instruct  the  jury  that  they  may 
consider  that  fact  in  determining  his  credibility.'^  It  is 
proper  to  instruct  that  the  jury  are  under  no  obligation 
to  believe  any  of  the  testimony  of  a  witness  who  swears 
falsely  as  to  one  material  fact,  but  it  is  safer  to  instruct 
them  further  in  the  same  connection  that  the  credibility 
of  such  a  witness  is  exclusively  a  question  for  them.'^ 
It  is  improper  to  instruct  that  if  the  jury  believe  a  wit- 
ness has  sworn  falsely  or  erroneously  in  any  part  of  his 
testimony,  the.y  will  disregard  all  his  evidence,  because 
leaving  out  the  question  of  materiality  and  permitting 
the  jury  to  disregard  all  his  evidence  if  they  find  that  he 

99;  People  v.  O'Brien,  68  Mich.  468.  the  jury.     Uiiderliill   v.  Ky.  Co.,  81 

False   swearing  must  be   intentional  Mich.    43;     Michigan    Pipe    Co.    v. 

or  wilful.     Rawlings  v.  Clyde  Plank  Michigan  Fire  &  Marine  Ins.  Co.,  92 

&  Macadamized  Road  Co.,  158  Mich.  Mich.  482,  488;  Goppelt  v.  Burgess, 

134.      Instruction    as    to    testifying  ].'!2     Mich.     28;     Preuschoff     v.     B. 

falsely  in  material  matters,  specify-  Stroh   Brewing  Co.,   132   Mich.   107; 

ing  them,  held  properly  modified  liy  Ahhott  v.  City  of  Detroit,  loO  Mich, 

omitting      the      particulars      named.  24.");  Zart  v.  Singer  Sewing  Machine 

Fraser  v.  Haggerty,  86  Mich.  521.  Co.,  162  Mich.  387. 

The  jury  are  not  bound  to  believe  79  People   v.   Rice,   103   Midi.   3.j0. 

a  witness  whose  testimony  is  incon-  80  Bowdlc  v.  Detroit  St.  Ry.  Co., 

sistent    with    the    circumstances,    al-  103  Mich.  272. 

though  there  is  no  other  testimony  81  Conkey  v.  Carpenter,  106  Mich, 

bearing   on   the   same    question.      If  1. 

there   is  anything  tending  to  create  82  Hillman    v.    Schwcuk,   68   Mich, 

distrust  in  the  trutlifulncss  of  a  wit-  293. 
ncss,   the   question   must   be   left    to 
1  Abbott— 60 


946  Instructions  to  Jury  §  11 

lias  sworn  erroneously  on  any  point.''  So  such  an  in- 
struction is  properly  refused  where  it  leaves  out  the  ques- 
tion of  intentional  falsehood  and  the  question  of  cor- 
roboration by  other  witnesses."  And  it  is  reversible 
error  in  an  instruction  on  the  credibility  of  a  party  as  a 
witness  to  assume  improperly  that  he  was  guilty  of  per- 
jury in  a  prior  suit.*®  It  is  not  error  to  refuse  to  charge 
that  the  jury  liad  no  rigiit  to  disregard  the  testimony  of 
any  witness,  merely  because  he  was  employed  by  de- 
fendant railroad  company,  where  there  was  nothing  to 
indicate  that  the  jury  would  so  regard  the  testimony  of 
any  witness  and  the  court  had  given  general  instructions 
as  to  credibility.*^  And  the  court  has  no  right  to  instruct 
that  servants  or  agents  of  a  party,  called  as  witnesses, 
have  any  such  interest  as  affects  their  testimony.*'''  It 
is  proper  to  charge  that  if  the  knowledge  or  employment 
of  a  witness  has  impaired  or  biased  his  judgment,  such 
fact  may  be  considered  in  weighing  his  testimony,  where 
counsel  have  commented  on  their  arguments  on  the  in- 
terests of  the  witnesses.**  It  is  not  the  right  of  either 
party  to  insist  that  the  court  call  attention  to  the  testi- 
mony of  a  particular  witness  and  give  cautionary  instruc- 
tions as  to  its  credibility,  altliough  it  may  not  be  error  so 
to  do,  but  it  is  sufficient  if  the  court  lays  down  general 
rules  to  guide  the  jury  in  weighing  testimony.**  And  it 
is  error  to  instruct,  where  an  attempt  has  been  made  to 
im})each  a  witness,  that  one  testifying  he  has  never  heard 
the  reputation  of  the  witness  for  truth  jind  veracity  ques- 
tioned is  not  entitled  to  the  same  consideration  as  one 
who  testifies  that  he  has  heard  it  questioned.*" 

«3Gerardo    v.    Brush,  120    Mich.           87  Marquette    H.   &   0.    R.    Co.   v. 

405.  Kirkwood,  45  Mich.  51. 

«4Gcrardo    v.    Brush,  120    Mich.           88  McDonoll    v.    Rifle    Boom    Co., 

405.  71  Mich.  (il. 

•5  Place  V.  Place,  139  Mich.  509.          89  Hcddle  v.  City  Electric  Ry.  Co., 

86Hintz  v.  Michigan  Cent.  R.  Co.,       112  Mich.  547. 

140  Mich.  565.  90  Conkcy  v.  Carpenter,  106  Mich.  1. 


§  l.S  Instructioxs  to  Jury  947 

It  is  proper  to  instruct  that  the  testimony  of  expert 
witnesses  should  be  given  the  same  consideration,  every- 
thing else  being  equal,  as  that  of  any  other  witness.®^ 

§  12.  Charge  as  to  failure  to  produce  witnesses. 

Tlie  court  may  proi)ei*ly  comment  on  the  failure  to  call 
a  witness  to  testify  as  to  a  material  fact  peculiarly  within 
the  knowledge  of  the  witness,  or  to  produce  obtainable 
testimony. '2  However,  the  court  is  not  obliged  to  in- 
struct that  the  absence  of  a  material  witness  for  the  op- 
posing party  militates  against  such  party.'^  And  it  is 
error  to  so  instruct  that  the  jury  may  draw  unfavorable 
inferences  against  one  claiming  the  protection  of  the 
statute  precluding  plaintiff  from  testifying  to  matters 
within  the  knowledge  of  the  deceased,  in  certain  cases.'* 
So  where  an  action  is  brought  by  the  assignee  of  a  claim, 
who  lias  no  knowledge  of  the  facts  in  issue,  it  is  error  to 
charge  that  his  abseiace  during  the  trial  should  be  con 
sidered  l>y  the  jury.^^ 

§  13.  Charge  as  to  duties  of  jury. 

It  is  propel'  to  charge  that  the  jury  must  not  be  con- 
trolled by  sympathy,'^  but  wliei'c  it  appears  that  the  ver- 
dict was  just,  and  was  not  brought  about  by  sympatliy 
loi-  piaiiilirr,  it  will  not  ))e  disturbed  because  of  a  refusal 
so  to  charge.^'  It  is  not  necessarily  error  to  refuse  to 
instruct  that  it  is  the  duty  of  the  jury  to  reconcile  their 
opinions  if  able  to  do  so  but  that  no  individual  is  re- 
(|iiir('d  to  suri'ender  his  individual  opinion.®*     Whei'e  a 

91  Aiitliony  v.  Cass  County  ironic  95  Hitclicock  v.  Davis,  87  Midi. 
Tol.  Co.,  165  Midi.  ;i8S,  ;;!)9.  fil29. 

92  Griggs  v.  Saginaw  &  F.  R.  Co.,  96  Rhpalinn  v.  Rairy,  27  Midi.  217. 
196  Midi.  2r)8;  Dowagiae  Mfg.  Co,  Spo  also  Robhins  v.  Magoon  &  Kim- 
V.  Rdiiiciflcr,  181   Midi.  .l.tS.  ball  Co.,  19:1  Mifh.  200. 

93  Cross  V.  Lake  Shore  &  M.  S.  97  Doyle  v.  Dobson,  74  Midi.  r,G2. 
Ry.  Co.,  69  Midi.  :i6;;.  98  See    Shaller    v.    Detroit    TTnited 

94  Ludlow    V.    Pearl's    Estate,    5.")  Ry.,  1.39  Mieli.  171. 
Midi.  :!12. 


948 


Instructions  to  Jury 


§13 


railroad  is  a  party,  it  is  not  improper  to  caution  the 
jur^'  against  a  popular  prejudice,  against  railroads, 
coupled  with  an  admonition  to  be  impartial  and  decide 
justly.*® 

§  14.  Charge  as  to  result  of  verdict. 

Tlio  jury  should  not  bo  charged  that  plaintiff  cannot 
lie  allowed  costs  unless  he  recovers  a  certain  amount.^ 

§  15.  Charge  as  to  burden  of  proof,  etc. 

On  request,  a  charge  should  be  given  as  to  the  burden 
of  proof,^  and  it  is  proper  to  instruct  as  to  the  preponder- 
ance of  evidence.^  But  it  is  improper  to  require  the  jury 
to  find  for  a  party  only  on  ''clear  and  convincing  proof,"  * 
or  to  require  the  showing  of  a  state  of  facts  from  which 
no  other  "rational  conclusion"  can  be  drawn. ^  Where 
the  probabilities  either  way  are  weak,  it  is  error  to  direct 
the  juiy  to  find  the  fact  by  the  greater  probability  with- 
out an  instruction  that  the  evidence  must  satisfy  them 
that  tlie  fact  exists.^  It  is  proper  to  caution  tlie  jury  as 
to  the  care  to  be  used  in  considering  the  testimonv  of 


M  Cornell  v.  Manistee  &  N.  E. 
R.  Co.,  117  Mich.  2:!8. 

IJohnson  v.  Henry,  127  Mi<h. 
548;  Sixnia  v.  Montgomery,  98  Midi. 
193. 

8  Rawlings  v.  Clyde  P.  &  M.  Ro.ad 
Co.,  1.58  Mich,  1.34. 

Particular  instructions  as  to,  see 
Hampton  v.  Van  Nest's  Estate,  lOfi 
Mich.  404;  American  Seed  Co.  v. 
Cole,  174  Mich.  42. 

3  Instructions  held  proper,  see 
Barkow  v.  Donovan  Wire  &  Iron 
Co.,  190  Mich.  .'jCS;  McNeal  v.  De- 
troit United  Ry.,  198  Mich.  108; 
Van  Slyke  v.  Rooks,  181  Mich.  88; 
Kaaro  v.  Ahmeek  Min.  Co.,  178 
Mich.  f)()l  ;  Taylor  v.  Taylor's  Es- 
tate, i:i8  Mich.  fijlS,  101  N.  W.  8:52; 


Strand  v.  Chicago  &  W.  M.  Ry.  Co., 
«7  Mich.  ;J80,  M  N.  W.  712.  Instruc- 
tion hold  improper,  see  Silverstone  v. 
London  Assur.  Corp.,  176  Mich.  .')2;'5; 
Dupuis  V.  Saginaw  Valley  Traction 
Co.,  14G  Mich.  l.'Jl.  See  Pomeroy  v. 
Everett,  lOr^  Mich.  147,  and  Stoner 
V.  Riggs,  128  Mich.  129,  where  in- 
struction as  to  held  not  prejudicial. 
See  Tyler  v.  Wright,  188  Mich.  .561, 
.566,  reviewing  decisions  and  holding 
instruction  that  the  burden  was  on 
a  party  to  convince  the  .jury  by  a 
"fair"  preponderance  of  the  evi- 
dence was  not  prejudicial  error. 

4  Evans  v.  Montgomery,  95  Mich. 
497. 

6  Pelky  v.  Palmer,  109  Mich.  .561. 

6  Dunbar  v.  McCill,  64  Mich.  676. 


I  17  Instructions  to  Jury  949 

witnesses  where  they  are  contradictory,'  but  the  mere 
fact  that  two  persons  testify  on  one  side,  and  only  one 
on  the  other,  does  not  necessitate  the  calling  of  the  jury's 
attention  to  the  preponderance.®  However,  the  court 
cannot  instruct  that  the  number  of  witnesses  has  noth- 
ing to  do  with  the  preponderance  of  evidence.*  It  is 
reversible  error  to  refuse  to  instruct,  in  a  proper  case,  as 
to  when  the  burden  of  proof  shifts  to  defendant."  But 
where  not  requested,  failure  to  instnict  as  to  burden  of 
proof  is  not  available  error." 

§  16.  Definition  of  terms. 

The  court  should  instruct  as  to  the  meaning  of  terms 
where  it  is  possible  the  jury  would  not  understand  them.^^ 
But  the  court  has  the  right  to  presume  that  the  jury  has 
ordinary  intelligence  so  as  to  understand  simple  words.*' 
And  where  the  jury  are  told  what  facts  would  constitute 
negligence,  it  is  proper  to  refuse  a  request  giving  the 
general  definition  of  negligence.** 

§  17.  Basing-  belief  on  evidence. 

Instructions  usually  begin  "If  you  believe  from  the 
evidence,"  etc.;  but  an  instruction  is  not  erroneous  be- 
cause it  does  not  expressly  restrict  the  jury  to  the  evi- 
dence." However,  an  instruction  in  effect  ])ermitting 
the  jury  to  render  a  verdict  without  being  governed  by 
the  evidence,  as  by  authorizing  them  to  take  into  con- 
sideration tlieii'  personal  knowledge  and  experience,  is 
erroneous.*^ 

7  Johnson  V.  McKee,  27  Mich.  471.  12  In    re    Bromley's    Estate,    11.". 

8  Mcintosh  v.  Mcintosh,  79  Mich.       Mich.  .I.".. 

198.  13  Miller    v.    Beck,    (58    Mich.    7ti. 

9  Diijiuis  V.  Saginaw  Valley  Trae-       "adverse." 

tion  Co.,  146  Mich.  1.'51.  14  Rt.  Clair  Mineral  Springs  Co.  v. 

lORawlings  V.  Clyde  P.  &  M.  Road  City  of  St.  Clair,  96  Mich.  46:5. 

Co.,   158  Mich.  ^M.  16  Isaacs    v.    McLean,    106    Mich. 

11  Stevens  v.   Pendleton,  94    Mich.  79. 

405.  16Karrer   v.   City   of  Detroit,   142 


050  Instructions  to  Jury  §  18 

§  18.  Reading  from  law  books. 

It  has  been  held  error  to  read  to  the  jury  the  full  text 
of  a  reported  case,"  but  not  error  to  read  the  language 
used  by  the  supreme  court  in  disposing  of  the  same  case 
on  a  former  trial,  where  merely  laying  down  a  rule  of 
law  applicable  equally  to  ))oth  cases." 

§  19.  Curing-  error  in  instructions. 

Error  in  an  instruction  may  be  cured  by  its  with- 
drawal,^' or  generally  by  giving  other  correct  instruc- 
tions.'*® But  the  giving  of  other  instnictions  does  not 
cure  the  error,  it  would  seem,  unless  it  is  clear  that  the 
jury  were  not  misled.^^  Thus,  where  the  court  of  its  own 
motion  gives  an  erroneous  instruction  apparently  ac- 
cepted and  acted  on  by  the  jury,  the  fact  that  it  was  ac- 
companied by  an  opposing  instruction  given  on  request 
of  one  of  the  parties  does  not  cure  the  error.^** 

INSURANCE 

Cross-Ticfercnces:  .Joinder  of  Causes  of  Action;  Exemptions;  Garn- 
ishment; Commencement  of  Actions;  Corporations;  Mandamus; 
Costs;  Venue;  LniiTATiox  of  Actions. 

By  rule  of  court,  "in  declaring  upon  a  policy  of  in- 
surance it  shall  not  be  necessaiy  to  set  forth  specifically 
any  more  than  the  execution,  the  date,  the  amount  of  the 
policy,  the  pi'emium  paid  or  to  be  paid,  the  property  or 
I'isk  iiisii)-('d,  tile  interest  of  tiie  insured,  and  the  loss."^ 

Midi.  .';.'!1 ;  Burrows  V.  Delta  Tiansp.  Lyon    v.    Watson,    109    Midi.    :J9n; 

Co.,  106  Mich.  .")8L'.  Westra     v.     Wostra's     Estate,     101 

17  l.andlicro  v.  Brothorton  Iron  Mich.  526;  Crand  Rapids  &  I.  R,  Co. 
Min.  Co.,  75  Mi<'h.  84.  v.  Cameron,  45  Mich.  451. 

18  Power  v.  Harlow,  57  Mich.  107.  21  See  Spencer  v.  Terry 's  Estate, 

19  Atherton  V.  Village  of  Bancroft,  13.3  Mich.  .39;  Callahan  v.  City  of 
114  Mich.  241;  Wonzol  v.  .Johnston,  Port  Huron,  128  Mich.  67.3. 

112  Mich.  24:).  22  Sterling   v.   Callahan,   94    Mich. 

20  Hale  V.  Knapj.,  134  Mich.  622;        5.36. 

Padgett    V.   .lacohs,   128   Mich.   632;  1  Cir.  Ct.  Rule  22,  §  5. 

Chaddnck    v.    Tahor,    115    Mich.    27;  Compliance  with  conditions  suhse- 


Insurance  951 

And  by  another  rule  of  court,  **in  a  suit  upon  a  policy  of 
insurance,  if  the  defendant  shall  rely,  in  whole  or  in  part, 
upon  any  breach  of  any  of  the  conditions,  agreements, 
representations  or  warranties  of  the  policy  or  application 
therefor,  or  upon  the  failure  to  perform  or  make  good 
any  promise,  representation  or  warranty,  or  upon  the 
failure  to  furnish  any  proof  of  loss,  as  required  by  the 
policy,  there  shall  be  added  to  the  plea  a  notice  plainly 
indicating  the  nature  of  the  defense  relied  upon."  ^  Proof 
of  execution  of  the  policy  is  not  necessary  unless  denied 
under  oath.^ 

State  Bar  Association  Form  of  Declaration  on  a  Life  Insurance  Policy 

(Title  of  court  and  cause.) 
The  plaintiff  says: 

1.  That  he  is  the  executor  of  the  last  will  of  C.  D.,  deceased. 

2.  That,  on ,  19.  . .,  the  defendant  executed  its  policy  of  insurance 

upon  the  life  of  the  said  C.  D.  for  the  sum  of  dollars,  payable  to 

tlie  executor  of  the  said  C  D.  upon  the  death  of  the  insured,  in  considera- 
tion of  premiums  paid  and  to  be  paid  as  therein  mentioned. 

3.  That,  on    ,  19...,  while  said  policy  •was  still  in  force,  the  said 

C.  D.  died,  of  which  the  defendant  had  notice. 

4.  That  the  defendant   has  not  paid  to  the  plaintiff  the  amount  of  said 
policy. 

5.  Wherefore,  etc. 

State  Bar  Association  Form  of  Declaration  on  a  Fire  Insurance  Policy 
(Title  of  court  and  cause.) 

The  plaintiff  says: 

1.  That,  on    ,   19...,  the  defendant,  in  consideration  of  premiums 

paid   and   to   be   paid   to   it   by   tlie   plaintiff,   insured  the   plaintiff   aj^ainst 

queut  need  not  be  i)leaded.     Ma<-a-  Amendment  of  notice,  see  Lessnau 

tawa  Transp.  Co.  v.  Firemen's  Fund  v.  Catholic  Order  of  Foresters,   IGu 

Ins.  Co.,  179  Mich.  443.  Mich.  Ill,  and  see  Ple.\ding. 

2Cir.  Ct.  Rule  23,  §4;  Gilchrist  v.  3  See  Pleading,  and  also  Grimme 

Mystic   Workers   of   the   World,   188  v.  General  Council  of  Fraternal  Aid 

Mich.     466;     O'Neill     v.     Northern  Ass'n,    167    Mich.    240;     Miller    v. 

Assur.  Co.,  155  Mich.  564;    Hare  v.  Prussian    Nat.    Ins.    Co.,    158   Mich. 

Workingmen  's        Mut.        Protective  402. 
Ass'n,    151    Mich.    225.      See    also 
Brown    v.    Great    Camp,    etc.,    167 
Mich.  123. 


952  Insurance 

loss   or    daiiiaj,'c    \>y   lire   as   follows:    dollars   on    a   dwelling   house 

at    ,   and    dollars  on  the   furniture   and  other  goods  in   said 

dwelling  house. 

2.  That  the  plaintiff  was  then  and  at  the  time  of  the  loss  hereinafter 
mentioned  interested  in  the  said  house  and  goods  to  the  amounts  so  insured 
thereon  respectively. 

3.  That,  on    ,19...,  the  said  house  and  goods  were  damaged  by 

fire,  of  which  the  defendant  had  notice. 

4.  That  the  amount  of  said   damage   to  the   plaintiff   is   dollars, 

which  sum  is  now  due  and  payable  by  the  defendant  to  the  plaintiff. 

5.  Wherefore,  etc. 

INTEREST 

See  Executions  (rate  on  judgment);  Judgments;  Costs;  Eeplevin; 
Garnishment;  Witnesses;  Jury;  Judges. 

INTERLOCUTORY 

See  Judgments;  Defaults;  Costs;  Certiorari;  Error,  Writ  of; 
Mandamus. 

INTERPLEADER 

See  Garnishment. 

INTERPRETERS 

See  Witnesses. 

INTERROGATORIES 

See  Depositions;  Garnishment. 

INTERURBAN  RAILROADS 

See  Commencement  of  Actions. 

INTOXICATING  LIQUORS 

See  Trial. 

INVENTORY 

See  Attachment;  Exemptions. 

IRREGULARITIES 

Sue  Amendments. 


JaiTv  T.tberties  953 

ISSUES 

See  Instructions  to  Jury;  Ck>sTs  (several  issues);  Garnishment. 
Framing  issues,  see  Motions,  etc.;  Mandamus;  Probate  Courts. 

JAIL  LIBERTIES 

By  statute,  '*  every  person  who  shall  be  in  the  custody 
of  the  sheriff  of  any  county  by  virtue  (1 )  of  any  capias  ad 
respondendum,  or  (2)  any  execution  in  a  civil  action,  or 
(?>)  any  attachment  for  the  non-payment  of  costs,  or  (4) 
in  consecjuence  of  a  surrendei*  in  exonei'ation  of  liis  bail; 
sliall  be  entitled  to  the  liberty  of  the  jail  limits,  whicli 
limits  shall  be  co-extensive  with  tlie  limits  of  such  county, 
upon  executing"  a  bond  to  such  sheriif  and  his  assigns,  by 
tlie  prisoner  and  one  or  more  sufficient  sureties,  being  in- 
habitants and  householders  of  the  county,  in  a  penalty  not 
less  than  double  the  amount  of  the  sum  in  which  the 
sherifi'  was  required  to  hold  the  defendant  to  bail,  if  he  be 
in  custody  on  original  process,  or  be  surrendered  in  ex- 
oneration of  his  bail  before  judgment  docketed  against 
him;  or  not  less  than  double  the  amount  dii'ected  to  be 
levied  by  the  attachment  or  execution,  if  he  be  in  custody 
upon  attachment  or  execution;  or  not  less  than  double  the 
amount  for  which  judgment  shall  have  been  rendered 
against  him,  if  he  be  surrendered  after  judgment  dock- 
eted. Such  bond  shall  be  conditioned,  that  the  person  so 
in  custody  of  such  sheriff,  shall  not  at  any  time  or  in  any 
manner,  escape  or  go  without  the  jail  limits  of  the  coun- 
ty, until  legally  discharged."^ 

Other  provisions  of  the  statute  relate  to  recommitment 
foi-  insufficiency  of  the  sureties,  surrender  by  the  sure- 
ties on  the  bond,  escape  of  the  prisoner,  actions  on  the 
))ond,  assignment  of  bond,  etc.^ 

The  bond  is  not  invalid  merely  ])ecause  of  clerical  mis- 

l.Iud.      Act,      ch.      25,      §§22-24;  Z.Iud.      Act,      ch.      25,      §§2r)-42; 

Conij).    Laws    1915,    §§  1.^000-1. '{002.       (Vimp.   Laws   1915,  §§  l.'^OO.I -1.^020. 
Rcc  also  Executions,  §  86. 


f)r>4  Jail  Liberties 

takes,  especially  where  immediately:  coirected.^  Tlie 
bond  stands  as  an  indemnity  to  the  officer  and  to  the 
,iud.^ment  creditor,  and  also  to  the  successor  of  the  officer 
without  any  written  assigmnent  to  him,  and  on  breach 
of  the  bond  the  latter  may  assii>;n  it  to  the  party  for 
whose  benefit  it  was  given.*  Where  a  new  bond  may  be 
taken  in  ])lace  of  an  old  one  a  peison  who  signs  such  a 
bond  as  an  additional  sni'ety,  after  delivery  to  the  sheriff, 
on  the  demand  of  tiie  hitter,  is  bound  thei'eby.*  The  bond 
will  not  su])port  a  recovery  thereon  whei'e  it  recites  that 
the  principal  was  in  custody  by  virtue  of  a  capias  ad 
respondendum  instead  of  a  capias  ad  satisfaciendum.^ 
Whei'e  tile  sheriff,  after  taking  tlie  ))()nd,  discovers  that 
any  surety  is  insuflicient  he  may  i-etake  and  iin))rison  the 
debtor  until  other  good  and  sufficient  sureties  are  ofl'ered. 
Likewise  the  statute  provides  for  a  suirender  of  the 
principal  by  the  sureties  on  the  bond,  how  such  surren- 
der shall  be  made,  and  what  shall  constitute  an  escape 
of  the  jn'incipal  so  as  to  make  the  sni'eties  liable  on  the 
bond.  In  an  action  on  the  bond  by  the  sheriff,  defendants 
may  give  notice  of  a  voluntary  return  of  the  prisoner  to 
the  liberties  of  the  jail  fiom  which  he  escaped,  or  his 
recapture  by  the  sheriff,  before  the  commencement  of  the 
suit;'''  but  a  judgment  against  the  sliei-iff  in  an  action 
against  him  foi-  an  escape  is  conclusive  of  iiis  riglit  to 
recover  against  such  prisoner  and  his  sureties,  wliere  due 
notice  is  given  them  of  the  suit.  In  an  action  on  the  bond, 
the  recoveiy  of  a  judgment  against  plaintiff  as  sheriff 
for  the  escape  of  the  i^risoner  is  evidence  of  his  damages, 
jnst  as  if  judgment  had  l)een  collected,  and  he  may  also 
recover  his  costs  and  reasonable  expenses  in  defending 
the  suit  against  him. 

sin  re  Fiiodricli,  li:!  Mifli.  408.  6  fluiin  v.  C.oaiy,  44  Mifli.  615. 

4  Kniso   V.    Kino;shuiy,    10i2   Mit'li.  7  Error  to  refiisp  to  poimit  ameml- 

100.  iiuMit  to  allof^o  sucli  dofenso.     Smith, 

6  K ruse    v.    Kiiiffslmry,    lO'J    Midi.  Stui'u;('nii    &    Co.    v.    (irosslitilit,    12.'! 

100.  Mi.li.   S7. 


Jail  Liberties  9«*^ 

By  statute,  where  the  boiid  is  forfeited  the  creditor,  or 
his  executors  or  administrators  if  he  has  died,  is  entitled 
to  an  assiirnment  of  the  bond  by  indorsement.  This  is 
not  a  mandatory  provision  to  the  extent  of  prohibiting 
a  sheriff  from  assigning  by  his  deputy.* 

The  statutes  provide  at  length  what  shall  constitute 
an  escape  and  the  liability  of  the  sheriff  therefor.  If  the 
defendant  escape  from  the  jail  limits  out  of  custody  on 
the  ca.  sa.,  the  plaintiff  has  the  choice  of  several  reme- 
dies. He  may  either  take  an  assignment  of  the  bond  for 
the  jail  limits,  or  sue  the  sheriff"  for  the  escape,  or  issue 
a  new  writ.^  If,  instead  of  taking  an  assignment  of  the 
bond  executed  for  the  jail  liberties,  the  plaintiff"  prose- 
cute the  sheriff'  for  the  escape,  the  court  will  stay  all  pro- 
ceedings on  the  judgment  recovered  therein  against  the 
sheriff  until  he  shall  have  had  a  reasonable  time  to  prose- 
cute a  suit  upon  the  bond,  and  collect  the  amount  of  any 
judgment  he  may  recover  therein,  unless  such  escape  was 
committed  with  the  assent,  aid  or  assistance  of  such 
sheriff. 

Form  of  Boud  for  Liberty  of  Jail  Limits 

Know  all  mea  by  these  presents,  that  we,  C.  D.,  of ,  as  principal, 

and  E.  F.  and  G.  H.,  of ,  as  sureties,  are  held  and  firmly  bound  unto 

S.  T.,  sheriff  of  the  county  of ,  in  the  sum  of dollars,  lawful 

money,  to  be  paid  to  the  said  S.  T.,  or  to  his  certain  attorney,  executors, 
administrators,  or  assigns,  for  which  payment,  well  and  truly  to  be  made, 
we  bind  ourselves,  our,  and  eaih  of  our,  heirs,  executors,  and  administrators, 
jointly  and  severally,  firmly  by  these  presents. 

Sealed  with  our  seals,  arid  dated  this day  of  ,  in  tlie  year 

one  thousand  nine  hundred    

Whereas  the  above-bounden  C.  D.  is  now  in  custody  of  the  said  S.  T., 
sheriff,  by  virtue   of   a   writ   of   capias   ad   respondendum    [or   other  writ] 

issued  out  of  the  circuit  court  for  the  county  of ,  on  the   day 

of ,  A.  D ,  at  the  suit  of  A.  B.,  as  plaintiff,  and  against  the 

above-bounden  C.  D.  as  defendant,  for  the  sum  of    dollars,  which 

said  writ  was  made  returnable  on  the day  of   ,  A.  D 

8  Hughes  V.  Hally,  137  Mich.  43.3. 

9  See  Grosslight  v.  Wayne  Circuit 
Judge,  127  Mich.  414. 


956  Jail  Liberties 

Now,  tlic  condition  of  tliis  obligation  is  such  that  if  the  abovc-bounden 
C.  D.  shall  remain  a  true  and  faithful  prisoner,  and  shall  not  at  any  time 
or  in  any  manner,  escape  or  go  without  the  jail  limits  of  the  said  county 

of    until    legally   discharged,   then    this    obligation   is   to   be   void; 

otherwise  to  remain  in  full  force  and  effect. 

C.  D.   LL.  S.] 

E.  F.   [L.  S.] 

(Add  justification.)  G.  H.   [L.  S.] 

JOINDER 

See  Error,  Writ  of;  Pleading. 

JOINDER  AND  SPLITTING  OF  CAUSES  OF  ACTION 

1.  Joinder 

Right  to  join  separate  causes  of  action. 

In  actions  ex  contractu. 

In  actions  ex  delicto. 

Actions  founded  on  statute  and  actions  at  common  law. 

Causes  of  action  as  affecting  all  parties  and  alike. 

Ordering  separate  trials. 

Inconsistent  counts. 

§    8.  Abandonment  of  special  count. 
§    9.  Effect  of  misjoinder. 
§  10.  Consolidation  of  actions. 

II.  Splitting  Cause  or  Causes  of  Action 
§  11.  Rule. 

CrossBefcrcncc:  Pleading    (necessity   for   separate  counts,   etc.). 

I.  Joinder 

§  1.  Right  to  join  separate  causes  of  action. 

The  law  as  to  what  causes  of  action  may  be  joined  was 
radically  changed  by  the  Judicature  Act  wdiich  pro- 
vides that,  with  certain  exceptions  hereinafter  noted, 
"plaintiff  may  join  in  one  action,  at  law  or  in  equity,  as 
many  causes  of  action  as  he  may  have  against  the  de- 
fendant, but  legal  and  equitable  causes  of  action  shall 
not  be  joined."^     This  is  supplemented  by  a  new  pro- 

1  Jud.  Act,  ch.  8,  §  1 ;  Comp.  Laws 
1915,  §  12309. 


§ 

1. 

§ 

2 

Ji 

3. 

S 

4. 

§ 

5. 

S 

6. 

§ 

7. 

§  3       Joinder  and  Splitting  of  Causes  of  Action       957 

vision  ill  tlie  1916  Circuit  Court  Rules  that  "a  count  in 
trespass  on  the  case  may  be  ,ioined  with  a  count  in  as- 
sumpsit in  an  action  of  assumpsit,  and  a  count  in  assump- 
sit may  be  joined  with  a  count  of  trespass  on  the  case  in 
an  action  of  trespass  on  the  case.^  Formerly,  while 
causes  of  action  ex  contractu  could  all  be  joined  and 
while  causes  of  action  ex  delicto  could  generally  be 
joined,  counts  in  form  ex  delicto  could  not  be  joined  with 
counts  in  form  ex  contractu.^ 

§  2.  In  actions  ex  contractu. 

Even  under  the  old  practice  before  the  Judicature  Act, 
plaintiff,  in  actions  in  form  ex  contractu,  could  join  as 
many  different  counts  as  he  had  causes  of  action  of  the 
same  nature.*  He  could  join  special  with  common  counts 
in  assumpsit,*  and  counts  on  a  contract  with  counts  on 
an  award.^ 

§  3.  In  actions  ex  delicto. 

Counts  ex  delicto  could  be  joined  to  some  extent  before 
the  Judicature  Act  even  though  the  form  of  action  was 
not  the  same,  but  decisions  holding  that  there  could  be 
no  joinder  because  of  the  difference  in  form  of  action  are 

2Cir.  Ct.  Rule  22,   §4.  dard  Paper  Co.,  182  Mich.  476,  48:?; 

.Joinder  of  causes  of  action  in  ac-  Mahder   v.   Wax,   192   Mich.  479. 

tion    by   road    contractor   personally  4  Tedd 's  Pr.  10,  11. 

and    as    assignee    against    casualty  5  Carland    v.   Western   Union   Tel. 

company,  sec  Sullivan  v.  Fidelity  &  Co.,  118  Midi.  :!G9. 

Casualty   Co.,  208  Mich.  68.  Common    counts    may    be    joined 

3  Haines  v.  Beach,  90  Mich.  r>6>\.  with  a  special  count  waiving  a  tort. 

The       question       generally       was  First  Nat.  Bank  v.  Steel,  1;j6  Mich, 

whether  the  counts  or  causes  of  ac-  •'588;    Tregent   v.   Maybee,  54   Mich, 

tion  were  in  fact  based  on  contract  226. 

or  tort.     See  Churchill  v.  Howe,  186  Siteeial  count  on  a  judgment  may 

Mich.    207;    City    of    Kalamazoo    v.  l>e   joined   with    the   common   counts 

Standard  Paper  Co.,  182  Mich.  476,  and  with  counts  for  use  and  occupa- 

48:?;     Manistee    Navigation    Co.    v.  tion.     Hogsett  v.  Ellis,  17  Mich.  Sol. 

Louis  Sands  Salt  &  Lumber  Co.,  174  6  Rawlinson  v.  Shaw,  117  Mich.  5. 
Mich.  1;  City  of  Kalamazoo  v.  Stan- 


958       Joinder  and  Splitting  of  Causes  of  Action       §  3 

110  longer  the  law.'^  A  cause  of  action  for  false  iinprison- 
nieiit  may  be  joined  with  one  for  shmder,*  as  may  counts 
for  false  imprisonment  and  malicious  prosecution,®  or 
counts  for  malicious  prosecution  and  slander.^"  Like- 
wise, counts  for  alienating-  a  wife's  affection  and  for 
seduction  may  be  joined."  The  statutory  action  given 
to  i)ersonal  representatives  for  negligently  causing  the 
death  of  their  decedent  may  be  joined  with  the  action 
under  the  survival  act  given  them  for  negligent  injuries 
to  the  person  of  their  decedent. ^^ 

§  4.  Actions  founded  on  statute  and  actions  at  com- 
mon law. 

It  was  formerly  held  that  an  action  founded  ui)on  a 
statute  could  not  be  joined  with  one  at  common  law,^^  but 
this  nile  is  changed  by  the  Judicature  Act. 

§  5.  Causes  of  action  as  affecting  all  parties,  and 

alike. 
It  is  a  well  settled  rule  that  the  several  causes  of 
action  must  all  exist  in  the  same  right,  and  affect  all 
the  jwirties  to  the  action,  or  they  cannot  be  joined;  and 
a  party  cannot  join  a  demand  as  a  representative  of 
another  with  one  in  his  individual  capacity,  nor  a  de- 

7  Charters  v.  Industrial  Works,  13  Peoiik-  v.  Wasiiteiiaw  Circuit 
179  Midi.  1,  17;  Cribbs  v.  Stevcr,  .hul^n-s,  1  Doug.  434,  447;  Hogsctt 
181   Mifh.  82,  86.  v.    Ellis,    17    Midi.    360.      See    also 

8  Moore  v.  Thoiiipsoii,  i)2  Midi.  Wadiusett  Nat.  Bank  v.  Steel,  l.'J.j 
498.  Midi.    688,   holding  that   a  creditor 

9  Haskiiis  v.  Ealston,  69  Mich.  63.  of  a  corporation  cannot  join  with  the 

10  Slater  V.  Walter,  148  Mich.  650.  couiniou    counts    in    assumpsit    and 
See  also  Cadwell  v.  Corey,  91  Mich.  with  counts  based  on  fraud,  a  count 
335.  l,ased   on   the   statute   imposing   Ha- 
ll Mead  V.  Randall,  111  Midi.  268.  bility  on  directors  in  three  times  the 
12Carbaiy  v.  Detroit  United  Ry.,  amount    |>aid    in    on    stock    held    by 

l.">7  Mich.  683;  Ely  V.  Detroit  I'nited       them    for    the    violation    of    certain 
Ky.,    162    Mich.    287.      Contra,    see       statutory  jirovisions. 
Hurst   V.   Detroit    City   Ry.   Co.,   84 
Mich.   539. 


§  5       Joinder  and  Splitting  of  Causes  of  Action       ^^^ 

mand  against  one  as  an  individual  with  one  against  him 
as  a  representative.^*  So  where  the  interests  of  different 
persons  are  not  joint,  they  cannot  sue  jointly,"  and 
where  defendants  are  not  jointly  liable  they  cannot  be 
sued  in  one  action. ^^  Where  several  persons  are  joint 
trespassers,  a  joint  action  may  be  maintained  against 
them.^"^  Where  several  persons  insured  by  the  same 
policy  assign  theii'  interests  to  the  same  person,  he  may 
join  all  the  said  interests  in  the  same  action."  So  where 
one  policy  of  insurance  was  issued  to  plaintiif  and  a 
third  person,  each  of  whom  owned  their  shares  in 
severalty,  and  another  policy  was  issued  to  plaintiff 
alone,  and  no  part  of  the  property  of  the  third  person 
was  destroyed,  plaintiff  may  sue  alone  on  both  policies 
in  one  action." 

The  Judicature  Act  provides  that  ''when  there  is 
more  than  one  plaintiff,  the  causes  of  action  joined  must 
be  joint,  and  if  there  be  more  than  one  defendant,  the 
liability  must  be  one  asserted  against  all  of  the  material 
defendants,  or  sufficient  grounds  must  appear  for  unit- 
ing the  causes  of  action  in  order  to  promote  the  con- 
venient administration  of  justice."^" 

14  See    Winslow    v.     .Joiinoss,    64  distinct  torts,  charged  to  each,  with- 

Mich.    84;     Burhaus    v.    Corey,    17  out  concert  of  action  or  community 

Mich.  282.  of   responsibility,   cannot  be   joined. 

ISDurfcc  V.  Al)bott,  50  Mich.  470;  Otto   v.   Village   of   Highland    Park, 

Walsh  V.  Varney,  :!8  Mich.  7:!.  204  Mich.  74. 

16  People    V.    Sheehan,    118    Mich.  "  Chapter  8  of  the  .Judicature  Act, 

5.'j9.  devoted    mainly   to   section    1    above 

nWienskawski     v.     Wisner,     114  quoted,     is     entitled     Moinder     and 

Mich.  271,  holding  persons  connected  severance    of    causes   of    action    and 

with  execution  sale  joint  trespassers.  the  con.solidation  of  actions.'     *Ae- 

18  Mercantile  Ins.  Co.  v.  Holthaus,  tions '  and  'causes  of  action,'  though 

4.'J  Mich.  423.  often    used    as   synonymous,   do   not 

ISBeebe    v.    Ohio    Farmers'    Tiis.  strictly    and    technically    have    the 

Co.,  9.3  Mich.  .'514.  same  meaning.     To  what  extent  the 

20Jud.    Act,    ch.    8,    SI;     Comp.  Legislature    had    in    mind    tltf    dis- 

Laws  191.5,  §  12.309.  tinction     when     including     the     two 

Causes  of  action  against  indepen-  terms    in   this   title,  and,  if  at  all, 

dent    tort-feasors    for    diftVr(>nt    and  jnst  what  definitions  were  intended, 


9G0       Joinder  and  SruTTixn  of  Causes  of  Action       §  6 


§6. 


Ordering  separate  trials. 


By  the  Judicature  Act,  "if  it  appears  that  any  such 


may  be  conceded  as  somewhat  cou- 
.ieotural  in  view  of  the  difficulties 
found  attending  attempts  to  give 
general  definitions  applicable  under 
all  conditions  (vide  'Action,'  vol. 
]  of  Corpus  Juris).  But  that  por- 
tion of  the  section  and  chapter  ap- 
I)licable  here  deals  with  '  causes  of 
action,'  which  are  generally  recog- 
nized and  often  defined  as  the  fact 
or  combination  of  facts  giving  rise 
to  or  entitling  a  party  to  sustain  an 
action. 

"The  provisions  of  section  1  re- 
lating to  joining  actions  between 
one  plaintiff  and  one  defendant,  and 
several  suits  commenced  against 
joint  and  several  debtors,  have  no 
application  to  this  declaration.  We 
liave  here  three  separate  defendants 
and  two  plaintiffs.  'Where  there  is 
more  than  one  plaintiff,  the  cause 
of  action  must  be  joint,'  which  may 
l)e  passed  as  meaning  the  plaintiffs 
must  be  legally  and  jointly  inter- 
ested as  'actors'  or  plaintiffs  in  the 
causes  of  action  joined,  and,  as  to 
these  three  defendants,  the  alleged 
liability  'must  be  asserted  against 
all,'  for  all  are  'material'  if  prop- 
erly made  defendants,  'or  sufficient 
grounds  must  appear  for  uniting 
the  causes  of  action  to  promote  the 
convenient  administration  of  jus- 
tice. ' 

"No  mention  of  convenience  is 
made  in  the  declaration,  nor  does  it 
appear  that  convenient  administra- 
tion or  the  ends  of  justice  will  be 
promoted  by  mingling  the  issues  of 
these  two  distinct  causes  of  action 
for  separate  torts,  charged  to  have 
been  committed  by  different  tort- 
feasors, without   CO  operation   in  the 


respective  trespasses  alleged,  de- 
j)endent  on  different  lines  of  proof 
and  demanding  separate  considera- 
tion, with  separate  verdicts  and 
judgments  as  to  each.  Inconven- 
ience, confusion  of  issues,  and  prej- 
udice from  testimony  admissible  as 
to  one  and  inadmissible  as  to  the 
other,  when  trying  together  distinct 
common-law  causes  of  action  for 
damages  against  different  defend- 
ants, are  as  inferable  from  such  in- 
7iovation  as  that  it  would  facilitate 
or  convenience  the  administration 
of  justice.  The  distinctions  V>etween 
actions  at  law  and  suits  in  chancery 
liave  not  been  abolished  in  this  state, 
and  these  tort  actions  are  triable  by 
jury.  Were  the  issues  triable  be- 
fore the  court  without  a  jury,  as  in 
chancery,  the  convenience  and  pro- 
priety of  their  consolidation  might 
be  more  apparent.  While  its  provi- 
sions as  to  joinder  of  actions  and 
l)arties  are  broad  in  terms  and  go 
far  beyond  the  former  settled  prac- 
tice, it  is  inferable  from  the  general 
tenor  of  the  Judicature  Act  consid- 
ered in  its  entirety  and,  we  think, 
from  the  very  language  under  con- 
sideration relative  to  parties  defend- 
ant, that  it  was  not  the  legislative 
intent  to  ignore  the  fundamental 
principles  of  procedure  to  the  extent 
proposed  in  this  declaration,  where, 
as  plaintiffs  sound  their  counts,  it 
is  sought  to  join  in  a  single  action 
and  have  determined  the  liability  of 
alleged  independent  tort-feasors  for 
different  and  distinct  torts  charged 
to  each,  without  concert  of  action 
or  community  of  responsibility,  in- 
evitably amounting  to  both  a  join- 
der  of   parties    severally   lialile   and 


§  8       Joinder  and  Splitting  of  Causes  of  Action       961 

causes  of  action  cannot  be  conveniently  disposed  of  to- 
gether, the  court  may  order  separate  trials."  ^^ 

§  7.  Inconsistent  counts. 

Formerly,  inconsistent  counts  could  not  be  joined,^' 
but  the  joining  of  two  repugnant  counts  did  not  pre- 
clude a  recovery  upon  one  of  them,  especially  where 
one  was  abandoned  at  the  trial.^'  However,  the  1916 
Circuit  Court  Rules  now  provide  that  '*  inconsistent 
causes  of  action  or  defenses  are  not  objectionable,  and 
when  the  party  is  in  doubt  as  to  which  of  two  or  more 
statements  is  true,  he  may  in  separate  counts  or  para- 
graphs allege  or  charge  facts  although  the  same  may 
be  inconsistent  with  other  counts  or  paragraphs  in  the 
same  pleading.'"^* 

§  8.  Abajidonment  of  special  count. 

On  the  trial,  plaintiff  may  abandon  the  special  count 
and  seek  a  recovery  on  the  common  counts  alone.^^  But 
where  suit  is  brought  both  on  a  special  and  on  the  com- 
mon counts,  and  the  two  positions  are  inconsistent, 
plaintiff  cannot,  after  the  evidence  is  all  in,  abandon 
the  special  count  and  recover  on  the  common  counts, 
where  the  whole  trial  was  conducted  on  the  theory  of 
recovering  on  the  special  count.^^ 

a  joinder  of  different  causes  of  ac-  Murphy  v.  McGraw,  74  Mich.  318 
tion,  each  against  a  different  de-  (count  for  breach  of  warranty  and 
f endant. ' '  Otto  v.  Village  of  High-  to  recover  money  paid  without  con- 
land  Park,  204  Mich.  74.  sideration)  ;  Hogle  v.  Mevering,  161 

21Jud.    Act,    ch.    8,     §1;     Comp.  Mich.  472. 

Laws  1915,  §  12309.  23  Berringer    v.    Cobb,    58    Mich. 

22  Counts    held    not    inconsistent,  557. 

see  Loudon  v.  Carroll,  130  Mich.  79  24  Cir.  Ct.  Eule  21,  §  7.     See  also 

(common     counts     and    counts    for  Pleading. 

fraud  and  deceit) ;  Barton  v.  Gray,  2B  Wynian    v.    Crowley,    33    Mich. 

48    Mich.    164;    Kimball    &    Austin  84;     Berringer    v.    Cobb,    58    Mich. 

Mfg.   Co.  V.  Vroman,  32   Mich.   310  557. 

(count  for  breach   of  warranty  and  26  Wetmore      v.      McDougall,      32 

count  for  money  had  and  received)  ;  Mich.  276. 
1  Abbott— 61 


962      Joinder  and  Splitting  of  Causes  of  Action       §  9 

§  9.  Effect  of  misjoinder. 

In  order  to  urge  a  misjoinder  of  causes  of  action,  de- 
fendant should  move  to  dismiss  the  action  or  set  up  the 
defense  in  tlie  notice  attached  to  the  plea,"  or  a  motion 
to  compel  an  election  may  be  made  at  the  trial.^*  It  is 
held  that  a  misjoinder  is  cured  by  verdict  where  no  ob- 
'jection  is  made.^* 

§  10.  Consolidation  of  actions. 

Where  the  plaintiff  has  two  causes  of  action  which 
may  be  joined  in  one  action,  he  ought  to  bring  one  action 
only;  and  if  he  commence  two  actions,  he  may  be  com- 
pelled to  consolidate  them.  The  statute  provides  that 
whenever  several  suits  are  pending  in  the  same  court, 
by  the  same  plaintiff  against  the  same  defendant,  for 
causes  of  action  which  may  be  joined,  the  court  in  which 
they  are  being  prosecuted  may,  in  its  discretion,  order 
the  several  suits  to  be  consolidated  into  one  action.  And 
when  several  suits  have  been  commenced  against  joint 
and  several  debtors  in  the  same  court,  the  statute  pro- 
vides that  the  plaintiff  may,  in  any  stage  of  the  pro- 
ceedings, consolidate  them  into  one  action.^'' 

II.  Splitting-  Cause  or  Causes  of  Action 

§  11.  Rule. 

Where  a  party  has  several  existing  causes  of  action 
growing  out  of  the  same  contract,  or  resting  in  matter 
of  account  wliich  may  be  joined  and  sued  for  in  the  same 
action,  they  must  be  joined;  and  if  in  such  case  the  de- 
mands or  causes  of  action  be  split  up,  and  a  suit  brought 
for  a  part  only,  and  subsequently  another  suit  for  the 
residue,  the  first  action  may  be  pleaded  in  bar  of  the 
second. ^^    The  same  principle  has  been  applied  to  claims 

27  See  Pleading.  80  See  Consolidation  of  Actions. 

28  See  Pleading.  81  Kruce  v.  Lakeside  Biscuit  Co., 
2»Schafer  v.  Boyce,  41  Mich.  256.       198  Mich.  736;   Button  v.  Shaw,  35 


Joint  Ownership  963 

for  damages  in  actions  ex  delicto.^^  So  a  single  cause 
of  action  cannot  be  split  up  and  made  the  subject  of 
two  or  more  actions,  for  the  reason  that  no  person 
should  be  unnecessarily  harassed  with  a  multiplicity 
of  suits.^^ 

JOINT  LIABILITY 

See  Attachment;  Discontinuance;  Limitation  of  Actions;  Judg- 
ment;  Defaults;   Executions;   Garnishment;   Parties, 

JOINT  OWNERSHIP 

Cross-Beferences:     Replevin;   Tenants  in  Common. 

The  English  rule  is  that,  in  actions  for  injuries  to  per- 
sonal property,  joint  tenants  must  join.^  Thus,  a  joint 
tenant  of  a  chattel  cannot  maintain  trover  against  his 
co-tenant  for  any  interference  with  his  right  of  posses- 
sion, unless  there  be  a  destruction  of  the  chattel  or  some- 
thing equivalent  thereto.^  A  sale  of  a  chattel  by  one  of 
two  joint  tenants  is  not  a  conversion,  unless  it  operates 
to  deprive  his  co-tenant  of  his  property.^ 

The  general  rule  is  that  in  actions  for  injuries  to  real 
property,  joint  tenants  must  join.* 

Mich.   431;    Milroy   v.   Spurr   Moun-  11     Chit.     PI.     74;     Pickering    v. 

tain    Iron    Min.    Co.,    4.3    Mich.    231  Pickering,  11  N.  H.   141;   Glover  v. 

(splitting  claim  for  several  months'  Austin,  6  Pick.    (Mass.)    209. 

labor)  ;     Blackburn     v.     Blackburn,  2  26  Am.  &  Eng.  Eneye.  Law,  787; 

132  Mich.  525.     See  also  Stickel  v.  citing  Wickman   v.   Wickman,   2   K. 

Steel,  41  Mich.  350;   Reid,  Murdoch  &  J.  478;   Mayhew  v.  Herrick,  7  C. 

&    Co.    V.    Ferris,    112    Mich.    693;  B.   229,   62   E.   C.   L.   229;    Bleaden 

People  V.  Detroit,  G.  H.  &  M.  Ry.  v.  Hancock,  4  Car.  &  P.  152;  Fen- 
Co.,   157   Mich.   144;    Harrington   v.  nings    v.    Granville,    1    Taunt.    241; 

Huflf  &  Mitchell  Co.,  155  Mich.  139;  Barnardiston    v.    Chapman,    4    East 

Muir  v.  Kalamazoo  Corset  Co.,  155  121. 

Mich.  441.  3  26  Am.  &  Eng.  Encyc.  Law,  787. 

82  Allison  V.  Connor,  36  Mich.  283.  4  1   Chit.   PI.   74;    Draper   v.   Wil- 

33  Jensen    v.    Gamble,    191    Mich.  liams,  2  Mich.  536;  Day  v.  Walden, 

238,   applying   rule   to   action   on   a  46    Mich.    575.      See   also   Achey    v. 

note.  Hull,  7   Mich.  423;   Gent  v.  Lynch, 


964  Judges  §  1 

JUDGES 

§    1.  Qualifications. 

§    2.  Powers,  duties  and  liabilities, 

§    3.  Holdings  court  for  other  judges. 

§    4.  Disqualification. 

§    5.  Transfer  of  causes  because  of  interest  of  judge. 

§    6.  Application  for  transfer. 

§    7.  Consent  for  transfer. 

§    8.  Order  for  hearing  application. 

§    9.  Hearing  of  application. 

§  10.  To  what  county  transferred. 

§  11.  Effect  of  transfer. 

§  12.  How  transfer  effected. 

§  13.  Fees  of  clerk. 

§  14.  Effect  of  office  becoming  vacant. 

§  15.  Effect  of  removal  beyond  limits  of  jurisdiction. 

§  16.  How  vacancies  filled. 

'  Cross-Eefcrences:  Courts;  Supreme  Court;  Circuit  Courts;  Probate 
Courts;  Justices  of  the  Peace;  Bill  of  Exceptions  (who  may  settle); 
Trial  (misconduct  of);  New  Trial;  Mandamus;  Contempt. 

§  1.  Qualifications. 

By  statute,  no  person  is  eligible  to  the  office  of  circuit 
judge  unless  he  is  an  attorney  duly  admitted  to  practice 
in  this  state. ^  A  member  of  the  legislature  is  forbidden 
by  the  constitution  to  hold  the  office  of  circuit  judge.^ 

§  2.  Powers,  duties  and  liabilities. 

No  circuit  judge  can  practice  or  act  as  counselor  or 
attorney  in  any  court  of  this  state  during  his  term  of 
office.^    Nor  can  lie  have  any  partner  practicing  in  the 

23  Md.  58;  Dewey  v.  Lambier,  7  Before  the  Judicature  Act  circuit 
Cal.  347 ;  Merrill  v.  Inhabitants  of  judges  were  merely  prohibited  from 
Berkshire,  11  Pick.   (Mass.)   269.             practicing  in   their  own  circuits. 

1  Jud.  Act,  'ch.  2,  §40;  Comp.  A  person  who  has  determined  a 
Laws  1915,  §  12123.  suit  as  judge  cannot  afterwards  act 

2  Const.  Art.  V,  see.  7.  See  Mur-  as  attorney  or  counselor  in  it.  Jud. 
tba  V.  Lindsay,  187  Mich.  79.  Act,  ch.  1,  §76;   Comp.  Laws  1915, 

8  Jud.  Act,  ch.  4,  §  9;  Comp.  Laws  §  12081.    Nor  can  he  act  as  a  judge 

1915,    §12256;    Gallagher    v.    Kern,  in  a  controversy  with  which  he  has 

31  Mich.   138;   Bashford  v.  People,  been    connected    as   counsel.      Shan- 

24  Mich.  244.  non  v.  Smith,  31  Mich.  451. 


§  3  Judges  965 

circuit  court  of  which  he  is  judge,  nor  be  directly  or  in- 
directly interested  in  the  costs  of  any  suit  that  is  brought 
in  his  circuit,  except  in  those  suits  in  which  he  is  a  party 
or  is  interested  in  the  subject-matter.*  He  is  also  for- 
bidden to  demand  or  receive  any  compensation  for  giv- 
ing his  advice  in  any  matter  pending  before  him  or  which 
he  has  reason  to  believe  wdll  be  brought  before  him  for 
decision,  or  for  drafting  or  preparing  any  papers  or 
other  proceedings  relating  to  any  such  matter,  except 
in  those  cases  where  fees  are  expressly  given  by  law  to 
such  judge  for  services  performed  by  him.^  So  the  judges 
of  the  circuit  courts  are  rendered  by  the  constitution  in- 
eligible to  any  other  than  a  judicial  office  during  the  term 
for  which  they  are  elected,  and  for  one  year  thereafter.® 
In  all  judicial  circuits  where  there  is  more  than  one 
circuit  judge,  provision  is  made  by  statute  as  to  their  re- 
spective powers,  presiding  judges,  reservation  of  ques- 
tions of  law  for  the  full  court,  sitting  together  of  two 
judges  in  the  hearing  of  trials,  apportionment  of  busi- 
ness, etc.'' 

§  3.  Holding  court  for  other  judges. 

The  constitution  provides  that  each  circuit  judge  shall 
hold  court  in  the  county  or  counties  within  the  circuit  in 
which  he  is  elected,  and  in  other  circuits  as  may  be  pro- 
vided by  law.^  It  is  provided  by  statute  that  '^upon 
proper  showing  and  request  made  by  the  presiding  judge 
of  any  of  the  circuit  courts  of  this  state,  that  the  busi- 
ness of  such  court  has  increased  beyond  the  capacity  of 

4  Jud.  Act,  ch.  4,  §  10;  Comp.  that  judges  of  the  circuit  court  may 
Laws  1915,  §  12257.  hold  court  for  each  other  when  re- 

5  Jud.  Act,  ch.  4,  §11;  Comp.  quired  by  law,  legislation  requiring 
Laws  1915,  §  12258.  judges    of    a    particular    circuit    to 

6  Const.  Art.  VII,  see.  9.  hold  terms  of  court  in  a  certain  cir- 

7  Jud.  Act,  eh.  2,  §§47-54;  Comp.  cuit  and  vice  versa,  under  certain 
Laws  1915,  §§12130-12137.  circumstances,  is  constitutional.  Toll 

8  Const.  Art.  VII,  sec.  8.  v.  Jerome,  101  Mich.  468. 
Under  the  constitutional  provision 


966  Judges  §  3 

the  judge  or  judges  of  said  circuit  court  to  properly  dis- 
pose of,  or  in  case  a  vacancy  sliall  exist  in  the  office  ot 
the  circuit  judge  in  any  judicial  circuit,  or  by  reason  of 
the  inability  of  any  circuit  judge  to  discharge  the  duties 
of  his  office,  it  shall  be  the  duty  of  the  Governor  to  desig- 
nate a  judge  or  judges  of  some  other  circuit  or  circuits, 
whose  official  duties  will  permit  for  the  time  being,  to 
hold  the  court  temporarily  for  such  time  as  he  may  deem 
advisable,  and  the  judge  or  judges  so  designated  shall 
perform  the  duties  and  hold  court  for  such  time  in  like 
manner  and  with  like  effect  as  they  severally  and  re- 
spectively could  have  done  if  they  had  been  elected  to 
such  office  in  the  circuit  where  such  duties  as  judge  are 
performed."® 

If  a  judge  of  probate  removes  out  of  his  county,  or 
be  temporarily  absent  therefrom,  or  shall  die,  resign,  or 
be  necessarily  occupied  in  the  performance  of  other  duties 
required  of  him  by  law,  or  otherwise  become  incapaci- 
tated for  executing  the  duties  of  his  office,  the  judge  of 
the  circuit  court  for  such  county  shall  hold  the  probate 
court  unless  he  also  be  incapacitated  for  executing  such 
duties,  or  the  judge  of  any  circuit  court  or  the  probate 
judge  of  any  county  of  this  state,  who  is  not  legally  in- 
capacitated for  so  executing  the  duties  of  such  probate 
judge,  may  upon  the  written  request  of  such  probate 
judge  or  in  case  of  his  absence  or  legal  disability  to  make 
such  request,  then  upon  the  request  of  the  circuit  judge 
of  such  county,  hold  the  probate  court,  and  the  judge 
so  acting  shall  have  all  the  powers  and  perform  all  the 
duties  of  the  judge  of  probate  therein,  until  the  return 
of  the  judge  of  probate  so  temporarily  absent  or  such 
incapacity  is  removed,  or  until  another  judge  of  probate 
shall  be  elected  or  appointed  and  qualified,  and  if  any 

9  Jud.  Act,  eh.  2,  §  267.  No  acceptance  of  appointment  is 

Statute  is  constitutional.  In  re  necessary.  Harvester  v.  Kelly,  23 
Bromley's  Estate,  113  Mich.  53.  Mich,  337. 


§  4  Judges  967 

such  judge  so  acting  as  judge  of  probate  shall  have  be- 
gun any  hearing  which  is  not  concluded  at  that  time  he 
shall  have  authority  to  hear  such  matter  to  its  conclu- 
sion and  give  judgment  thereon.  In  all  cases  where  a 
circuit  judge  or  a  probate  judge  of  any  other  county  shall 
perform  the  duties  of  the  judge  of  probate,  an  entry  of 
the  reason  for  such  circuit  judge  or  probate  judge  so 
performing  such  duties  shall  be  made  in  the  records  of 
such  probate  court. ^° 

§  4.  Disqualification. 

Judges  are  always  subject  to  that  fundamental  and 
universal  maxim  that  no  man  shall  be  a  judge  in  his  own 
cause,  which  includes  not  only  any  cause  in  which  the 
person  exercising  judicial  authority  is  a  party  to  the 
record,  but  also  any  matter  in  which  he  is  interested. 
This  maxim  is  deeply  rooted  in  the  common  law  and  can 
never  be  overlooked  wherever  impartial  justice  is  one  of 
the  objects  of  judicial  administration.^^  Lord  Coke  as- 
serts that  ''even  an  act  of  parliament  made  against 
natural  equity, — as  to  make  a  man  a  judge  in  his  own 
case, — is  void  in  itself."  An  express  provision  of  law, 
investing  a  court  with  the  power  to  try  all  cases  involv- 
ing certain  amounts  or  of  a  certain  character,  would  give 
the  judge  no  right  to  try  his  own  cause  or  give  final 
judgment  in  his  own  favor,  though  the  case  in  every 
other  respect  should  fall  within  the  class  he  is  expressly 
authorized  to  try.  An  exception  of  such  cases  would  be 
implied,  and  the  exception  would  be  just  as  valid  and 
just  as  readily  recognized  by  all  the  courts  as  if  it  had 
been  expressed. ^^ 

The  degree  of  interest  necessary  to  disqualify  a  person 

lOJud.    Act,    ch.    3,    §11;    Comp.  79  Mich.  642,  and  cases  cited;  West 

Laws  1915,  §  12239.  v.  Wheeler,  49  Mich.  505 ;   Shannon 

11  Parsons    v.    Russell,    11    Mich.  v.   Smith,  31   Mich.  452;   Peninsular 

113;    Stockwell   v.   White   Lake   Tj).,  R.  Co.  v.  Howard,  20  Mich.  18. 
22    Mich.    341 ;    Horton    v.    Howard,  18  People  v.  Gies,  25  Mich.  83. 


968  Judges  §  4 

for  sitting  as  a  judge  in  the  trial  of  a  cause  is  very  small, 
any  tangible  interest  being  sufficient."  The  action  of 
a  judge,  so  disqualified  to  sit  in  a  case,  is  not  simply  ir- 
regular, but  is  without  jurisdiction,^*  so  that  a  decision 
rendered  by  him  would  be  utterly  void."  And  the  rule 
is  carried  so  far  that  if  one  of  the  judges  constituting  a 
court  is  disqualified  on  this  ground,  the  judgment  will 
be  void,  even  though  the  proper  number  may  have  con- 
curred in  the  result,  not  reckoning  the  interested  party." 
The  rule  is  one  the  observance  of  which  does  not  lie 
«"ithin  the  discretion  of  the  court.  It  is  not  left  to  the 
judge's  own  sense  of  propriety  or  decency.  The  prin- 
ciple forbids  him  to  act  in  such  a  capacity  at  all,  when 
he  is  thus  interested  or  when  he  may  possibly  be  subject 
to  this  limitation.^'''  The  failure  to  observe  the  rule  is 
not  waived  by  the  neglect  of  a  party  to  take  advantage 
of  it  on  the  first  opportunity,  but  it  may  be  raised  in  the 
appellate  court  for  the  first  time."  No  statute  is  needed 
to  establish  these  disqualifications."  Yet  the  legislature 
of  Michigan  has  provided,  by  way  of  declaration  and 
amplification  of  the  common  law,  that  no  judge  of  any 
court  can  sit  as  such  in  any  cause  or  proceeding  in  which 
he  is  a  party,  or  in  which  he  is  interested,  or  in  which 
he  would  be  excluded  from  being  a  juror  by  reason  of 
consanguinity  or  affinity  to  either  of  the  parties,^"  nor 

13  Clement    v.    Everest,    29    Mich.  20   Mich.   18;    Bliss  v.   Caille  Bros. 

19,    21;    Baldwin    v.    McArthur,    17  Co.,  149  Mich.  601;  Sandusky  Grain 

Barb.   (N.  Y.)   414.  Co.,  184  Mich.  126. 

14Cooley  Const.  Lim.  411.  19  People    v.    Judge    of    Saginaw 

16  Bliss    V.    Caille   Bros.    Co.,    149  Circuit,  26  Mich.  342,  345. 
Mich.    601;    Horton   v.   Howard,   79  20  As     for     example,    nephew    or 

Mich.  642.  cousin  to  any  of  the  parties,  Horton 

16  Cooley  Const.  Lim.  411,  citing  v.  Howard,  79  Mich.  642;  or  where 
Queen  v.  Justices  of  Hertforshire,  6  a  party  is  a  blood  relative  of  the 
Q.  B.  753;  State  v.  Crane,  36  N.  J.  judge's  wife  within  the  ninth  degree 
L.  394.  of    consanguinity.     Bliss     v.     Caille 

17  Peninsular  R.  Co.  v.  Howard,  Bros.  Co.,  149  Mich.  601 ;  or  where 
20  Mich.  18.  he  was  a  brother-in-law  of  the  coun- 

18  Peninsular   R.    Co.    v.   Howard,  sel  of  one  of  the  parties,  Knicker- 


§  4  Judges  969 

can  he  decide  or  take  part  in  the  decision  of  any  question 
which  shall  have  been  argued  in  the  court  when  he  was 
not  present  and  sitting  therein  as  a  judge.^^  Nor,  by- 
statute,  can  any  judge  sit  as  a  court  in  any  cause  in 
which  he  is  related  within  the  third  degree  of  con- 
sanguinity to  either  of  the  attorneys  or  counselors  of 
either  party  to  such  cause ;  but  such  disqualification  must 
be  made  to  appear  and  it  may  be  waived  by  stipulation 
filed  in  the  cause,  and  furthermore  will  be  deemed  to 
have  been  waived  unless  the  objection  on  account  of  such 
disqualification  has  been  filed  in  writing  at  or  before 
the  commencement  of  the  trial  or  hearing.^^  Nor,  by 
statute,  can  any  judge  of  an  appellate  court,  or  of  any 
court  to  which  a  writ  of  certiorari  or  of  error  shall  be 
returnable,  decide  or  take  part  in  the  decision  of  any 
cause  or  matter,  which  was  determined  by  him  while 
sitting  as  judge  of  any  other  court.^^ 

However,  a  circuit  judge  is  not  disqualified  because 
he  is  a  brother-in-law  of  one  of  the  counsel  for  plaintiff 
although  such  counsel  had  the  case  on  shares,  where  the 
contract  for  compensation  was  rescinded  before  the  ques- 
tion of  disqualification  was  decided.^*  So  a  supreme 
court  judge  is  not  disqualified  from  sitting  in  a  case 
merely  because  his  son  is  a  member  of  a  firm  who  were 
attorneys  of  record  for  plaintiff  where  neither  the  son 
nor  his  partner  took  any  part  in  the  proceedings  before 
the  supreme  court,  and  the  management  of  the  case  in 
the  trial  court  was  in  other  hands.^^ 

bocker  v.  Worthing,  138  Mich.  224.  transactions.     Barnard  v.  Judge  of 

21Jud.    Act,    ch.    4,    §7;    Comp.  Superior    Court,    191    Mich.    567. 

Laws  1915,  §  12254.  Waiver,    see   Cninn   v.    Gunn,   205 

22Jud.    Act,    ch.    4,    §7;     Comp.  Mich.   198. 

Laws  1915,  §  12254.  23  Jud.    Act,    ch.    4,    §8;    Comp. 

A  judge  is  not  disqualified  from  Laws  1915,  §  12255. 

passing     on     interlocutory     motions  24  Knickerbocker  v.  Worthing,  138 

because  his  son  and  nephew  are  act-  Mich.  224. 

ing  as  attorneys  in  related  proceed-  25  Maclean    v.    Scripps,    52    Mich. 

ings    involving    the    same    series    of  214,  254. 


970  Judges  §  4 

The  relationship  of  a  judge  to  a  stockholder  of  a  party 
is  equally  as  disqualifying  as  relationship  to  a  natural 
party.^^  So  a  judge  cannot  appoint  a  receiver  for  a  cor- 
poration in  which  stock  is  held  in  the  name  of  a  sister  of 
the  judge's  wife.^''' 

The  rule  of  disqualification  of  judges  must  yield  to  the 
demands  of  necessity  as  where  it  would  destroy  the  only 
tribunal  in  which  relief  could  be  had.*^* 

The  fact  that  a  judge  is  interested  has  been  held  no 
objection  to  his  making  fomial  orders  that  put  the  case 
on  the  road  to  a  determination,'^^ 

A  judge  is  not  disqualified  to  rehear  a  motion  or  cause 
which  has  been  passed  upon  by  another  judge  sitting  in 
the  same  court.^° 

§  5.  Transfer  of  causes  because  of  interest  of  judge. 

Whenever  any  civil  suit  or  proceeding  is  pending  in 
any  circuit  court  in  this  state  in  which  the  judge  of  the 
court  is  interested  as  a  party  or  as  a  member  of  any  cor- 
poration which  is  a  party,  or  has  been  consulted  or  em- 
ployed as  counsel  in  the  subject-matter  to  be  litigated  in 
the  suit,  or  in  which  for  any  other  reason  he  would  be 
excluded  from  sitting  as  judge,  the  cause  may  be  trans- 
ferred to  some  other  circuit  court,  or  such  judge  may  call 
in  any  other  judge  not  disqualified  to  sit  in  the  case.^^ 

§  6.  Application  for  transfer. 

Any  party  who  desires  to  transfer  a  suit  or  proceed- 
ing may  apply  to  the  judge  of  any  adjoining  circuit  who 

86  Davis  Colliery  Co.  v.  Charlevoix  80  Manufacturers'  Mut.   Fire  Ins. 

Sugar  Co.,  155  Mich.  228.  Co.    v.    Gratiot    Circuit    Judge,    79 

27  Davis  Colliery  Co.  v.  Charlevoix      Mich.  241. 

Sugar  Co.,  155  Mich.  228.  31Jud.    Act,    ch.    10,    §3;    Comp. 

28  Bliss    V.    Caille    Bros.    Co.,    149       Laws  1915,  §  12342. 

Mich.  601.  If    judge,    deeming    himself    dis- 

29  McFarlane  v.  Clark,  39  Mich.  qualified,  calls  in  another  judge,  who 
44.  sets  the  case  for  trial,  another  court 


§  7  Judges  971 

is  not  disqualified,  for  an  order  to  transfer  the  case.  It 
was  formerly  held  that  the  application  could  not  be  made 
to  the  judge  who  is  disqualified  to  try  the  cause,  and 
that  he  was  not  expected  or  allowed  to  exercise  any  dis- 
cretion in  the  matter,*^  but  under  the  new  provision  in 
the  Judicature  Act  the  judge  of  the  court  in  wliich  the 
suit  is  pending  may  call  in  any  other  judge  not  disquali- 
fied to  sit  in  such  cause.*' 

The  application  must  be  in  writing  and  set  forth 
specifically  the  grounds  for  the  transfer.**  The  petition 
is  not  required  to  be  verified  and  it  need  not  set  forth 
that  the  judge  of  the  circuit  to  which  the  transfer  is 
sought  is  qualified  to  sit,  although  this  fact  should  be 
made  to  appear  to  the  judge  to  whom  the  application  is 
made ;  *^  but  the  petition  should  show  that  the  judge  from 
whose  court  the  cause  is  sought  to  be  transferred  is  dis- 
qualified.*^ 

The  rule  *''  which  limits  the  time  for  moving  for  a 
change  of  venue  does  not  apply  to  applications  of  this 
character.** 

§  7.  Consent  for  transfer. 

The  parties  to  a  suit  may,  by  stipulation  in  writing, 
consent  to  a  transfer  of  it  without  application  to  a  judge; 
in  which  case,  the  stipulation  will  have  the  same  effect 
as  an  order  duly  made  for  the  transfer.*® 

cannot  order  a  change  of  venue  be-  36  Fellows    v.    Canney,    75    Mich. 

cause  of  disqualification  of  the  first  445. 

judge.       Sharrar     v.    Ionia    Circuit  37  Cir.  Ct.  Rule  38. 

Judge,  205  Mich.  500.  88  Conistock     v.     Alpena     Circuit 

32  Shannon  v.  Smith,  31  Mich.  451.  Judge,  152  Mich.  212. 

33Jud.    Act,   ch.    10,    §3;    Comp.  39  Jud.    Act,    ch.    10,    §4;    Comp. 

Laws  1915,  §  12342.  Laws    1915,     §12343;     Palmiter    ▼. 

34  Jud.    Act,    ch.    10,    §4;    Comp.  Pere     Marquette     Lumber    Co.,     31 

Laws  1915,  §  12343.  Mich.  183. 

36  Grostick  v.  Detroit,  etc.,  R.  Co., 
96  Mich.  495;  Kelley  v.  Simpson, 
79  Mich.  392. 


972  Judges  §  8 

§  8.  Order  for  hearing  application. 

On  receiving  an  application  for  the  transfer  of  a  case, 
it  is  the  duty  of  the  judge  to  appoint  a  time  and  place  of 
hearing,  and,  from  time  to  time,  as  may  be  necessary, 
to  direct  the  manner  in  which  notice  of  the  hearing  shall 
be  given  to  all  parties  interested  in  the  application." 

§  9.  Hearing  of  application. 

On  the  day  appointed  for  the  hearing  or  to  which  the 
hearing  has  been  adjourned,  when  it  appears  that  notice 
of  hearing  has  been  duly  given,  the  judge  will  proceed 
to  hear  and  determine  the  application.  For  this  purpose, 
he  may  issue  subpoenas  for  witnesses  and  require  their 
attendance  as  in  other  cases,  and  will  hear  the  proofs 
and  allegations  of  the  parties  touching  the  application 
before  him.  If  he  is  satisfied  that  the  judge  of  the  cir- 
cuit court  where  the  suit  is  pending  is  disqualified  to  sit 
in  the  cause,  within  the  intent  and  meaning  of  the  statute, 
he  should  grant  an  order  for  the  transfer  of  the  case  to 
the  circuit  court  of  some  other  county,  which  he  must 
specify  in  the  order.*^  When  an  application  sets  forth 
a  proper  cause  for  removal,  which  is  established  by 
proof,  the  judge  to  whom  the  application  is  made  must 
grant  the  order  for  the  transfer.  The  statute  in  this  re- 
spect is  imperative.  The  only  matter  left  to  his  discre- 
tion is  the  circuit  and  county  to  which  the  cause  shall 
be  transferred.*^ 

§  10.  To  what  county  transferred. 

The  discretionary  power  of  the  judge  as  to  the  county 
to  whicli  he  shall  order  a  transfer  is  limited  by  the  statute 
which  provides  that,  in  case  the  parties  to  the  suit  or 

40Jud.    Act,    ch.    10,    §5;    Comp.  Grostick  v.  Detroit,  etc.,  R.  Co.,  96 

Laws   1915,   §12344.  Mich.    495;     Bolles    v.    Sault    Sav. 

41Jud.    Act,    ch.    10,    §6;    Comp.  Bank  L.  &  T.  Co.,  86  Mich.  229;  In 

Laws  1915,  §12345.  re  Sanborn,  96  Mich.  606. 

42  Pack  V.  Simpson,  74  Mich.  28; 


§  12  Judges  973 

proceeding  agree  by  stipulation  in  writing  or  otherwise 
upon  the  circuit  court  to  which  the  case  shall  be  trans- 
ferred, the  judge  shall  order  the  transfer  accordingly, 
but,  if  no  agreement  be  reached,  the  judge  shall  hear  such 
proofs  as  may  be  offered  by  the  parties  and  order  a  trans- 
fer to  the  county  in  which  the  case  can  be  tried  with  the 
most  convenience,  expedition  and  economy,  and  in  which 
the  circuit  judge  is  not  disqualified  to  sit  in  the  case." 

§  11.  Effect  of  transfer. 

In  the  order  of  transfer,  the  proceedings  before  the 
judge  should  be  briefly  recited.  On  filing  the  order  with 
the  clerk  of  the  court  to  which  the  suit  or  proceeding  is 
transferred,  that  court  will  have  jurisdiction  to  the  same 
extent  as  if  the  cause  or  proceeding  had  been  legally  com- 
menced in  it  and  may  grant  such  orders  as  may  be  neces- 
sary to  procure  the  transfer  of  the  existing  files  and  or- 
ders in  the  case  to  it  and  to  cause  due  notice  of  the  trans- 
fer.4* 

§  12.  How  transfer  effected. 

Upon  delivering  to  the  clerk  of  the  court  where  the 
cause  was  pending  before  the  transfer  a  copy  of  the  or- 
der of  transfer,  duly  certified  by  the  clerk  of  the  court 
in  which  the  order  is  filed,  the  clerk  to  whom  such  cer- 
tified copy  is  delivered  is  required  to  attach  together  the 
originals  of  all  the  papers  filed  in  the  suit  or  proceeding, 
and  to  make  true  copies  of  all  the  orders  made  therein 
which  are  entered  upon  the  books  of  record  in  the  court, 
and  to  transmit  the  same,  certified  under  his  hand  and 
seal  to  be  the  originals  of  such  files  and  true  copies  of 
such  orders,  to  tlie  clerk  of  the  court  in  which  the  order 

43  Jud.    Act,    ch.    10,    §7;    Comp.  cuit,    see    Daniel    v.    Citizens'    Mut. 

Laws     1915,     §12346;     Simpson     v.  Fire  Ins.  Co.,  149  Mich.  626. 

Kelley,  81  Mich.  116.  44  Jud.    Act,    ch.    10,    §8;    Comp. 

That  judge  who  hears  application  Laws  1915,  §  12.'?47. 
may   transfer  ease   to   his  own   cir- 


974  Judges  §  12 

of  transfer  lias  boon  filed;  which  files  and  copies,  when 
so  filed  and  deposited  in  the  office  of  the  clerk  to  whom 
the  transfer  is  to  be  made,  will  have  the  same  force  and 
effect  in  all  respects,  and  be  subject  to  the  rules  and  or- 
ders of  the  court,  as  original  proceedings  therein." 

§  13.  Fees  of  clerk. 

The  clerk  whose  duty  it  is  to  transmit  the  files  and 
orders  in  any  cause  in  compliance  with  an  order  of  trans- 
fer is  entitled  to  six  cents  per  folio  for  all  copies  of  or- 
ders and  proceedings  necessarily  made,  and  one  dollar  in 
addition  thereto,  which  will  be  in  full  for  all  services 
rendered  in  connection  with  such  transfer.*^ 

§  14.  Effect  of  office  becoming  vacant. 

No  process,  proceeding  or  suit,  civil  or  criminal,  be- 
fore any  of  the  courts  of  record,  shall  be  discontinued  by 
the  occurrence  of  any  vacancy  in  the  office  of  any  judge, 
or  of  all  the  judges  of  such  court,  nor  by  the  issuing  of 
any  new  commission  to  any  judge  or  judges  of  any  such 
court,  but  the  persons  appointed  in  any  such  new  com- 
mission shall  have  power  to  continue,  hear  and  determine 
such  process,  proceeding  or  suit,  as  their  predecessors 
might  have  done  if  no  new  commission  had  been  issued.*' 

§  15.  Effect  of  removal  beyond  limits  of  jurisdiction. 

Whenever  a  judge  removes  beyond  the  limits  of  the 
jurisdiction  for  which  he  was  elected,  he  is  deemed  to 
have  vacated  his  office,*®  but  a  circuit  judge  may  be 
elected  or  appointed  from  any  part  of  the  state,  and  con- 
tinue to  hold  the  office,  though  he  does  not  reside  within 
his  circuit,  and  it  is  only  when  a  judge  actually  residing 

45Jud.    Act,    eh,    10,    §9;  Comp.  47  Jud.    Act,    eh.    4,    §2;     Comp. 

Laws  1915,  §  12348.  Laws    1915,    §  12249. 

46Jud.   Act,   ch.   10,    §10;  Comp.  48  Const.  Art.  VII,  see.  9. 

Laws  1915,   §  12349. 


Judgment  975 

in  his  circuit  removes  from  it,  that  he  vacates  his  office.*^ 
A  person  is  eligible  to  the  office  of  circuit  judge  who  does 
not  reside  within  the  circuit  for  which  he  is  elected,  and 
may  continue  to  be  a  non-resident  during  his  official 
tcrm.^' 

§  16.  How  vacancies  filled. 

When  a  vacancy  occurs  in  the  office  of  judge  of  any 
court  of  record,  it  must  be  filled  by  appointment  of  the 
governor,  which  appointment  continues  until  a  successor 
is  elected  and  qualified;  and  when  elected,  such  successor 
holds  the  office  during  the  residue  of  the  unexpired 
term.*^ 

JUDGMENT 

§    1.  What  constitutes. 

§    2..  Judgment  without  issue. 

§    2a.  Declaratory  judgments. 

§    3.  Kinds  of. 

§    4.  Judgment  record. 

§    5.  Time  for  entry. 

§    6.  Entry  in  vacation  upon  special  finding. 

§    7.  Entry  nunc  pro  tunc. 

§    8.  Form  and  contents. 

§    9.  Parties  to  judgment. 

§  10.  Judgment  against  part  of  plaintiffs  or  defendants  as  authorized 

by  statute. 

§11.  Motion  for  judgment  by  one  defendant. 

§  12.  Judgment   in   actions   on   joint   obligations   where   only   part   of 

defendants  served. 
§  13.  Conformity  to  pleadings,  evidence,  verdict,  etc. 
§  14.  Judgment  notwithstanding  the  verdict. 
§  14a.  Sojmmary  judgment  in  action  on  contract  in  absence  of  aftidavit  of 

merits. 
§  15.  Interest. 
§  16.  Amendment. 
§  17.  Opening  or  vacating. 

49  People  V,    Goodwin,    22    Mich.  51  Const.  Art.  VIT,  see.  20. 

496.  Vacancy  can  be  filled  only  by  the 

60  People  V.  Goodwin,  22  Mich.  governor.  Attorney  General  v.  Reni- 
496.        .  han,  184  Mich.  272. 


976  Judgment  §  1 

§  18.  Arrest  of  judgment. 

§  19.  Lien. 

§  20.  Satisfaction  by  arrest. 

§  21.  Void  or  voidable  judgments. 

§  22.  Effect  of  judgment. 

§  23.  Persons  affected. 

§  24.  Pleading  a  judgment. 

Cross-Beferences:  Defaults;  Offer  of  Judgment;  Confession  op 
Judgment;  Cognovits;  Payment  Into  Court;  Tender;  Executions; 
Supplementary  Proceedings;  Security  for  Costs  (judgment  against 
surety);  Executors  and  Administrators  (judgments  against);  Set-off 
(set-off  of  judgments) ;  Stay  of  Proceedings.  Judgment  in  particular 
actions,  see  Ejectment;  Keplevin;  Garnishment;  etc.  Judgment  in 
supreme  court,  see  Supreme  Court;  Error,  Writ  of;  Certiorari;  Man- 
damus; etc. 

§  1.  What  constitutes. 

When  the  issue  has  been  decided,  whether  it  be  of  fact 
or  of  law,  the  next  step  in  the  progress  of  the  cause  in 
its  logical  order  is  the  entry  of  the  judgment.  The  judg- 
ment is  the  sentence  of  the  law,  pronounced  by  the  court, 
upon  the  matter  contained  in  the  record.^  It  is  the  final 
consideration  and  determination  of  a  court  of  competent 
jurisdiction  upon  the  matters  submitted  to  it,  and  it  is 
evidenced  only  by  a  record,  or  that  which  is  by  law,  as 
the  files  and  journal  entries  in  this  state,  substituted  in 
its  stead.^  It  is  the  decision  or  sentence  of  the  law,  given 
by  a  court  of  justice  or  other  competent  tribunal  as  the 
result  of  the  proceedings  instituted  therein.^  The  judg- 
ment, though  pronounced  or  awarded  by  the  judges,  is 
not  their  determination  or  sentence,  but  the  determina- 
tion and  sentence  of  the  law.  It  is  the  conclusion  that 
naturally  and  regularly  follows  from  the  premises  of  law 
and  fact.  It  depends,  therefore,  not  upon  the  arbitrary 
caprice  of  the  judge,  but  on  the  settled  and  invariable 
principles  of  justice.    The  judgment,  in  short,  is  the  rem- 

13  Cooley's  Bl.  Comm.  395;   Cyc.  3  Crippen  v.  People,  8  Mich.  117. 

Law  Diet.  tit.  "Judgment."  As  to  motion  for  summary  judgment 

2Whitwell  v.  Emory,  3  Mich.  84.      after  issue  joined,  see  §  14a. 


§  2a  Judgment  977 

edy  prescribed  by  law  for  the  redress  of  injuries,  and  the 
suit  or  action  is  the  vehicle  or  means  of  administering 
it.  What  that  remedy  may  be  is,  indeed,  the  result  of 
deliberation,  and  therefore  the  style  of  the  judgment  is 
not  that  it  is  decreed  or  resolved  by  the  court,  for  then 
the  judgment  might  appear  to  be  their  own  and  not  that 
of  the  law,  but  that  ''it  is  considered"  that  the  plaintiff 
do  recover  his  damages,  his  debt,  his  possession  and  the 
like,  which  implies  that  the  judgment  is  not  their  own, 
but  the  act  of  law,  pronounced  and  declared  by  the  court 
after  due  deliberation  and  inquiry. 

§  2.  Judgment  without  issue. 

Judgments  are  also  sometimes  entered  in  a  cause 
wherein  no  issue  has  been  joined,  or  where,  if  issue  has 
been  joined,  it  has  been  superseded  by  the  act  or  omis- 
sion of  one  or  both  of  the  parties.  Such,  for  instance, 
are  judgments  by  confession,*  upon  default,*  upon  cogno- 
vit,^ and  the  like,  of  all  of  which  proceedings  and  the 
incidents  thereof  notice  will  be  taken  in  appropriate 
places  in  this  work.  Suffice  it  here  to  say  only  that  a 
judgment  entered  in  any  of  these  cases  is  none  the  less 
a  judgment  than  if  it  be  entered  after  the  verdict  of  a 
jury  or  the  finding  of  the  court  or  the  decision  of  the  court 
upon  an  issue  of  law. 

§  2a.  Declaratory  judgments. 

By  an  act  adopted  in  1919,  it  is  provided  that  no  action 
or  proceeding  in  any  court  of  record  shall  be  open  to 
objection  on  the  ground  that  a  merely  declaratory  judg- 
ment, decree  or  order  is  sought  thereby,  and  the  court 
may  make  binding  declarations  of  rights  whether  any 
consequential  relief  is  or  could  be  claimed,  or  not,  includ- 
ing the  determination,  at  the  instance  of  anyone  claim- 

4  See  Confession  op  Judgment.  6  See  Cognovits, 

5  Sec  Defaults. 

1  Abbott— 62 


978  Judgment  §  2a 

ing  to  be  interested  under  a  deed,  will  or  other  written 
instrument,  of  any  question  of  construction  arising  un- 
der the  instrument  and  a  declaration  of  the  rights  of  the 
parties  interested.  Declarations  of  rights  and  determina- 
tions of  questions  of  construction,  as  herein  provided 
for,  may  be  obtained  by  means  of  ordinary  proceedings 
at  law  or  in  equity,  or  by  means  of  a  petition  on  either 
the  law  or  equity  side  of  the  court  as  the  nature  of  the 
case  may  require,  and  where  a  declaration  of  rights  is 
the  only  relief  asked,  the  case  may  be  noticed  for  early 
hearing  as  in  the  case  of  a  motion.  Where  further  re- 
lief based  upon  a  declaration  of  rights  shall  become  neces- 
sary or  proper  after  such  declaration  has  been  made,  ap- 
plication may  be  made  by  petition  to  any  court  having 
jurisdiction  to  grant  such  relief,  for  an  order  directed 
to  any  party  or  parties  whose  rights  have  been  deter- 
mined by  such  declaration,  to  show  cause  why  such 
further  relief  should  not  be  granted  forthwith,  upon  such 
reasonable  notice  as  shall  be  prescribed  by  the  court  in 
the  said  order.  When  a  declaration  of  rights,  or  the 
granting  of  further  relief  based  thereon,  shall  involve 
the  determination  of  issues  of  fact  triable  by  a  jury,  such 
issues  may  be  submitted  to  a  jury  in  the  form  of  inter- 
rogatories, with  such  instructions  by  the  court  as  may  be 
proper,  whether  a  general  verdict  be  rendered  or  re- 
quired or  not,  and  such  interrogatories  and  answers  shall 
constitute  a  i)art  of  the  record  of  the  case.  Unless  the 
parties  shall  agree  by  stipulation  as  to  the  allowance 
thereof,  costs  in  such  proceedings  shall  be  allowed  in  ac- 
cordance with  such  special  rules  as  the  supreme  court 
may  make,  and  in  the  absence  of  such  rules  the  practice 
followed  in  ordinary  cases  at  law  or  in  equity  shall  be 
followed  wherever  applicable,  and  when  not  applicable, 
the  costs  or  such  part  thereof  as  to  the  court  may  seem 
just,  in  view  of  tlie  particular  circumstances  of  the  case, 
may  be  awarded  to  either  party.    This  act  is  declared  to 


§  4  Judgment  979 

be  remedial,  and  is  to  be  liberally  construed  and  liberally 
administered  with  a  view  of  making  the  courts  more 
serviceable  to  the  people.'^ 

§  3.  Kinds  of. 

Every  judgment,  whether  it  be  rendered  after  the  trial 
of  an  issue  or  not,  is  of  one  of  two  sorts,  viz.,  either  ''in- 
terlocutory" or  "final."  Interlocutory  judgments  are 
such  as  do  not  constitute  a  complete  determination  of  the 
suit,  but  leave  something  further  to  be  done  in  order  to 
attain  that  result.  An  example  of  an  interlocutory  judg- 
ment is  that  of  respondeat  ouster,  that  the  defendant 
answer  over.  Another  is  that  which  is  entered  where 
the  right  of  the  plaintiff  to  recover  is  established,  but 
the  extent  of  his  recovery  remains  to  be  determined 
afterwards.^  And,  in  reference  to  the  last  example,  it 
is  said  that  the  only  object  of  an  interlocutory  judgment 
is  to  direct  the  assessment  of  damages  for  the  purpose 
of  a  final  judgment.^  Final  judgments  are  such  as  at 
once  put  an  end  to  the  action  by  declaring  that  the  plain- 
tiff has  entitled  himself  to  the  remedy  he  sues  for  or  that 
he  has  not.'^"  They  constitute  a  complete  determination 
of  the  suit  and  leave  nothing  further  to  be  done  in  order 
to  attain  that  result. 

§  4.  Judgment  record. 

No  judgment  can  exist  until  it  is  put  in  due  form  by 
the  court  and  entered.*^  The  rendering  of  a  judgment 
is  an  act  which,  on  theory  at  least,  and  formerly  always 
in  practice,  required  the  holding  of  the  court  in  order  to 
perform  it,  and  consequently  it  is  always  considered  as 
taking  place  in  term  time.**    No  formal  judgment  record 

7  Pub.  Acts  1919,  No.  150.  H  People  v.  McCutcheon,  40  Mich. 

83  Cooley's  Bl.  Comm.  896,  397.         244. 

9  Wilcox  V.   Sweet,   24   Mich.   35.3.  12  Hemmens   v.  Bentley,  32  Mich. 

10  3  Cooley's  Bl.  Comm.  398;  Cyc.       89. 
Law  Diet.  tit.  "Final." 


980  Judgment  §  4 

is  now  made  up  under  the  practice  prevailing  in  ]\Iich- 
igan,  but  the  files  and  journal  entries  are  deemed  a  sub- 
stitute for  such  record  and  to  constitute  the  record 
itself.^'  This,  however,  does  not  dispense  with  any  of 
the  essential  requisites  and  evidences  of  a  judgment,  and 
the  almost  uniform  practice  has  been  to  require  the  jour- 
nal entries  of  proceedings  had  subsequent  to  the  join- 
ing of  issue  to  be  as  full  as  the  postea  of  a  judgment 
record.  Indeed,  to  a  very  great  extent,  the  language 
itself  has  been  adopted.^* 

§  5.  Time  for  entry. 

It  is  customary  to  file  decisions  in  term  without  oral 
announcement  and  for  the  clerk  to  enter  judgment  in 
the  journal  in  accordance  with  such  decision.  So,  after 
verdict,  while  in  some  circuits  the  practice  has  prevailed 
of  deferring  the  entry  of  judgment  until  a  formal  mo- 
tion for  judgment  is  made,  such  practice  has  generally 
given  way  to  the  custom  of  the  clerks  to  enter  judgment 
immediately  or  after  the  time  within  which  a  motion  to 
set  aside  the  verdict  may  be  made.^^  If  the  case  is  tried 
without  a  juiy,  judgment  cannot  be  entered  until  after 
the  findings  of  fact  and  of  law  have  been  filed.^^ 

§  6.  Entry  in  vacation  upon  special  finding. 

Although,  as  a  general  rule,  judgments  are  actually 
rendered  and  entered  in  term  and  are  always,  in  theory, 
supposed  to  be,  the  statute  makes  special  provision  for 

13  Norvell  v.  McHenry,  1  Mich.  reference  to  the  title  of  the  cause. 
227;  Kenyon  v.  Baker,  16  Mich.  First  Nat.  Bank  v.  Garland,  109 
373;   Prentiss  v.  Holbrook,  2  Mich.      Mich.  515. 

372;    Crane  v.  Hardy,  1  Mich.  56;  IS  Knack  v.  Wayne  Circuit  Judge, 

Emery   v.    Whitwell,    6    Mich.   474;  147  Mich.  485.     See  also  Harvey  v. 

Hovey  v.  Smith,  22  Mich.  170.  McAdams,  32  Mich.  472. 

14  Whitwell  v.  Emory,  3  Mich.  84.  16  Wisconsin   Chair  Co.  v.  Charle- 
A  judgment  entry  defective  as  to  voix  Circuit  Judge,  189  Mich.  548. 

naming  of  parties  may  be  aided  by 


§  8  Judgment  981 

cases  wherein  the  court  has  made  a  special  finding  of 
the  facts  and  the  law  upon  the  request  of  either  party.^' 
In  such  cases,  the  finding  is  forthwith  filed  with  the  clerk 
and  judgment  entered  thereon.  Notice  of  the  entry  of 
such  judgment  is  required  to  be  given  by  the  clerk  to 
all  the  parties  or  their  attorneys."  The  time  prescribed 
by  law  within  which  a  writ  of  error  is  to  be  taken,  when 
the  judgment  is  entered  in  vacation,  is  to  be  computed 
from  the  day  when  such  judgment  is  actually  entered  by 
the  clerk  ^^  and  written  notice  thereof  given  to  the  party 
against  whom  the  decision  is  rendered,^"  unless  the  right 
to  notice  has  been  waived.^^  The  notice  is  an  essential 
accompaniment  of  the  entry  of  a  judgment  in  vacation.^^ 

§  7.  Entry  nunc  pro  tunc. 

In  furtherance  of  justice,  courts  may  cause  the  entry 
of  judgments  nunc  pro  tunc  in  proper  cases,  as  in  case 
of  the  omission  of  the  clerk  to  record  it,^^  or  where  a 
default  against  one  of  defendants  was  not  entered  when 
it  could  have  been.^* 

§  8.  Form  and  contents. 

A  judgment  is  entitled  in  the  cause,  states  whether  the 
trial  was  by  jury  or  by  the  court  without  a  jury,  specifies 
the  amount  of  the  judgment,  etc.  If  trial  was  by  the 
court  without  a  jury,  it  need  not  contain  the  judge 's  find- 
ings.^^  A  judgment  is  not  uncertain  in  amount  merely 
because  blanks  are  left  for  the  amount  of  costs  taxed, 

17Juf].   Act,   eh,   18,    §14;    Comp.  McClung  v.  McClung,  39  Mich.  55. 

Laws  1915,  §  12586.  21  Riehardson  v.  Yawkoy,  9  Mich. 

ISJud.  Act,  ch.   18,   §14;    Comp.  i:!9. 

Laws      1915,      §12586;      Wisconsin  22  McClung  v.  MeClung,  39  Mich. 

Chair     Co.     v.     Charlevoix     Circuit  55. 

Judge,  189  Mich.  548.  23  In  re  Shepard,  109  Mich.  631. 

19Jud.   Act,   ch.    50,    §10;    Comp.  24  Steers  v.  Hohues,  79  Mich.  439. 

Laws  1915,  §  13745.  25  Lonian  v.  Benson,  9  Mich.  237. 

20  People  V,  Wilson,  12  Mich.  25; 


982  Judgment  §  8 

where  the  costs  were  thereafter  taxed. ^^  The  judgment 
must  not  be  made  payable  in  a  particuhir  kind  of  money .^' 
A  judgment  in  assumpsit  is  not  void  because  of  an  in- 
effectual attempt  to  enforce  a  mechanics'  lien  in  the  same 
proceeding.^^  So  a  judgment  is  not  invalid  because  it 
gives  plaintiff  a  lien  on  realty,  since  the  question  as  to 
lien  can  be  urged  only  when  the  judgment  is  sought  to 
be  enforced  at  law  against  realty.^' 

A  judgment  entry  is  not  invalid  because  it  designates 
the  defendants  only  by  reference  to  the  title  of  the  cause.'" 
So  one  sued  by  actual  service  of  process,  under  a  name 
which  he  is  called  by  and  known,  is  bound  by  a  judg- 
ment under  that  name.'^ 

Form  of  Judgment  Upon  Verdict  for  Plaintiff  in  Assumpsit 

(Title  of  cause.) 

In  this  cause,  the  parties  being  in  court,  by  their  respective  attorneys, 
ready  for  trial,  thereupon  came  a  jury,  to  wit  (insert  names  of  jurors), 
good  and  lawful  men,  who,  being  duly  chosen,  tried  and  sworn  well  and 
truly  to  try  the  issue  between  the  parties,  after  hearing  the  proofs  and 
allegations  of  the  parties,  the  arguments  of  counsel  and  the  charge  of  the 
court,  retired  from  the  bar,  under  the  charge  of  S.  T.,  an  officer  of  the 
court,  duly  sworn  for  that  i)urpose,  to  consider  their  verdict  to  be  given, 
and,  after  being  absent  for  a  time,  return  into  court  and  say  upon  their 
oath  that  the  said  defendant  did  undertake  and  promise  in  manner  and 
form  as  the  said  plaintiff  has,  in  his  declaration  in  this  cause,  complained 
against  him,  and  that  they  assess  the  damages  of  the  said  plaintiff,  on 
occasion  of  the  premises,  over  and  above  his  costs  and  charges  by  him 

about   his  suit  in   this   behalf  expended,   at   the   sum   of    dollars. 

Therefore,  it  is  considered  by  the  court  now  here  that  the  said  plaintiff  do 
recover  against  the  said  defendant  his  damages  aforesaid,  together  with 
his  costs  and  charges  aforesaid,  to  be  taxed,  and  that  the  said  plaintiff 
have  execution  therefor. 

26Sehroeder   v.   Boyee,   127   Mich.  30  First  Nat.   Bank   of   Athens  v. 

,33.  ■Garland,  109  Mich.  515,  holding  that 

27  Buchegger  v.  Schultz,  13  Mich.  entry  may  be  construed  in  connee- 
420.  tion  with  the  pleadings  and  record. 

28  Allured  v.  Voller,  107  Mich.  31  Field  v.  Plummer,  75  Mich.  437. 
476. 

29  Conlin  v.  Lamont  Iron  Co.,  116 
Mich.   626. 


§  8  Judgment  983 

rorm  of  Judgment  on  Verdict  in  Assumpsit  Against  Two  or  More  De- 
fendants, Wlien  One  Pleads  and  the  Other  Makes  Default 

(Title  of  cause.) 

In  this  cause,  the  parties  being  in  court,  by  their  respective  attorneys, 
ready  for  trial,  thereupon  came  a  jury,  to  wit  (insert  the  names  of  the 
jurors),  good  and  lawful  men,  who,  being  duly  chosen,  tried  and  sworn 
well  and  truly  to  try  the  issue  between  the  parties,  after  hearing  the  proofs 
and  allegations  of  the  parties,  the  arguments  of  counsel  and  the  charge  of 
the  court,  retired  from  the  bar,  under  the  charge  of  S.  T.,  an  oflScer  of  the 
court,  duly  sworn  for  that  purpose,  to  consider  of  their  verdict  to  be 
given,  and,  after  being  absent  for  a  time,  return  into  court  and  say  upon 
their  oath  that  the  said  defendant  C.  D.  did  undertake  and  promise  in 
manner  and  form  as  the  said  plaintiff  in  his  declaration  in  this  cause 
complains  against  him,  and  that  they  assess  the  damages  of  the  said 
plaintiff  as  well  against  the  said  C.  D.  as  against  the  said  defendant  E.  F., 
on  occasion  of  the  premises,  over  and  above  his  costs  and  charges  by  him 

about   his   suit   in   this   behalf    expended,   at   the    sum    of    dollars. 

Therefore,  it  is  considered  that  the  said  plaintiff  to  recover  against  the 
said  defendants  C.  D.  and  E.  F.  his  damages  aforesaid,  together  with  his 
costs  and  charges  aforesaid,  to  be  taxed,  and  that  the  said  plaintiff  have 
execution  therefor. 

Form  of  Judgment  on  Finding  by  Court  for  Plaintiff  in  Assumpsit 

(Title  of  cause.) 

In  this  cause,  the  parties  being  in  court,  by  their  respective  attorneys, 
ready  for  trial,  and  the  same  having  been  duly  brought  on  for  trial  before 
the  court,  without  a  jury,  the  court,  having  heard  the  proofs  and  allegations 
of  the  parties  and  the  arguments  of  counsel,  after  mature  deliberation 
thereon,  finds  that  the  said  defendant  did  undertake  and  promise  in  manner 
and  form  as  the  said  plaintiff  has,  in  his  declaration  in  this  cause,  com- 
plained against  him,  and  that  the  said  plaintiff  has  sustained  damages,  on 
occasion  of  the  premises,  over  and  above  his  costs  and  charges  by  him  about 

his  suit  in  that  behalf  expended,  to  the  sum  of dollars.     Therefore, 

it  is  considered  that  the  said  plaintiff  do  recover  against  the  said  defendant 
his  damages  aforesaid,  together  with  his  costs  and  charges  aforesaid,  to  be 
taxed,  and  that  the  said  plaintiff  have  execution  therefor. 

Form  of  Judgment  on  Verdict  for  Defendant  in  Assumpsit 

(Title  of  cause.) 

In  this  cause,  the  parties  being  in  court,  by  their  respective  attorneys, 
ready  for  trial,  thereupon  came  a  jury,  to  wit  (insert  the  names  of  the 
jurors),  good  and  lawful  men,  who,  being  duly  chosen,  tried  and  sworn 
well  and  truly  to  try  the  issue  between  the  parties,  after  hearing  the  proofs 
and  allegations  of  the  parties,  the  arguments  of  counsel  and  the  charge  of 
the  court,  retired  from  the  bar,  under  the  charge  of  S.  T.,  an  officer  of  the 


984  Judgment  §  8 

court,  duly  sworn  for  that  purpose,  to  consider  of  their  verdict  to  be  given, 
and,  after  being  absent  for  a  time,  return  into  court  and  say  upon  their 
oath  that  the  said  defendant  did  not  undertake  and  promise  as  the  said 
plaintiff  in  his  declaration  in  this  cause  alleged.  Therefore,  it  is  considered 
that  the  said  plaintiff  take  nothing  by  his  suit,  and  that  the  said  de- 
fendant do  go  thereof  without  day;  and  that  the  said  defendant  do 
recover  against  the  said  plaintiff  his  costs  and  charges  by  him  about  his 
suit  in  this  behalf  expended,  to  be  taxed,  and  that  the  said  defendant  have 
execution  therefor. 

Form  of  Judgment  on  Verdict  for  Defendant  in  Assumpsit,  When  De- 
fendant Has  Given  Notice  of  Set-off 

(Title  of  cause.) 

In  this  cause,  the  parties  being  in  court,  by  their  respective  attorneys, 
ready  for  trial,  thereupon  came  a  jury,  to  wit  (here  insert  the  names  of 
the  jurors),  good  and  lawful  men,  who,  being  duly  chosen,  tried  and  sworn 
well  and  truly  to  try  the  issue  between  the  parties,  after  hearing  the  proofs 
and  allegations  of  the  parties,  the  arguments  of  counsel  and  the  charge  of 
the  court,  retired  from  the  bar,  under  the  charge  of  S.  T.,  an  officer 
of  the  court,  duly  sworn  for  that  purpose,  to  consider  of  their  verdict 
to  be  given,  and,  after  being  absent  for  a  time,  return  into  court  and 
say  upon  their  oath  that  the  said  plaintiff  was  and  is  indebted  to  the 
said  defendant  in  manner  and  form  as  the  said  defendant  in  his  notice 
of  set-off  in  this  cause  alleged,  and  assess  the  amount  thereof,  over 
and  above  the  costs  and  charges  of  the  said  defendant  about  his  defense 

in  this  behalf  expended,  at  the  sum  of    dollars.     Therefore,  it  is 

considered  that  the  said  plaintiff  take  nothing  by  his  suit,  and  that  the 
said  defendant  do  recover  against  him,  the  said  plaintiff,  the  sum  of  money 
aforesaid,  together  with  the  costs  and  charges  aforesaid,  to  be  taxed,  and 
that  the  said  defendant  liave  execution  therefor. 

Form    of    Judgment    for    Defendant    Upon    Finding    of    the    Court    in 

Assumpsit 

(Title  of  cause.) 

In  this  cause,  the  parties  being  in  court,  by  their  respective  attorneys, 
ready  for  trial,  and  the  same  having  been  duly  brought  on  for  trial  before 
the  court,  without  a  jury,  the  court,  having  heard  the  proofs  and  allega- 
tions of  the  parties  and  the  arguments  of  counsel,  after  mature  deliberation 
thereon,  finds  that  the  said  defendant  did  not  undertake  and  promise  in 
manner  and  form  as  the  said  plaintiff  in  his  declaration  in  this  cause 
complained  against  him.  Therefore,  it  is  considered  that  the  said  plaintiff 
take  nothing  by  his  suit,  and  that  the  said  defendant  do  go  thereof  with- 
out day;  and  that  the  said  defendant  do  recover  against  the  said  plaintiff 
his  costs  and  charges  by  him  about  his  defense  in  this  behalf  expended, 
to  be  taxed,  and  that  the  said  defendant  have  execution  therefor. 


§  8  Judgment  985 

Form  of  Judgment  on  Verdict  for  Plaintiff  in  Action  on  the  Case 

(Title  of  cause.) 

In  this  cause,  the  parties  being  in  court,  by  their  respective  attorneys, 
ready  for  trial,  thereupon  came  a  jury,  to  wit  (here  insert  the  names  of 
the  jurors),  good  and  lawful  men,  who,  being  duly  chosen,  tried  and  sworn 
well  and  truly  to  try  the  issue  between  the  parties,  after  hearing  the 
proofs  and  allegations  of  the  parties,  the  arguments  of  counsel  and  the 
charge  of  the  court,  retired  from  the  bar,  under  the  charge  of  S.  T.,  an 
officer  of  the  court,  duly  sworn  for  that  purpose,  to  consider  of  their 
verdict  to  be  given,  and,  after  being  absent  for  a  time,  return  into  court 
and  say  upon  their  oath  that  the  said  defendant  is  guilty  in  manner  and 
form  as  the  said  plaintiff  has  in  his  declaration  in  this  cause  complained 
against  him,  and  that  they  assess  the  damages  of  the  said  plaintiff  on 
occasion  of  the  premises,   over  and  above  his  costs  and  charges  by  him 

about  his  suit   in   this   behalf   expended,   at  the    sum   of    dollars. 

Therefore,  it  is  considered  that  the  said  plaintiff  do  recover  against  the 
said  defendant  his  damages  aforesaid,  together  with  his  costs  and  charges 
aforesaid,  to  be  taxed,  and  that  the  said  plaintiff  have  execution  therefor. 

Form  of  Judgment  for  Defendant  Upon  Finding  by  Court  in  Case 

(Title  of  cause.) 

In  this  cause,  the  parties  being  in  court,  by  their  respective  attorneys, 
ready  for  trial,  and  the  same  having  been  duly  brought  on  for  trial  before 
the  court,  without  a  jury,  the  court,  having  heard  the  proofs  and  allegations 
of  the  parties  and  the  arguments  of  counsel,  after  mature  deliberation, 
finds  that  the  said  defendant  is  not  guilty  in  manner  and  form  as  the  said 
plaintiff,  in  his  declaration  in  this  cause,  complained  against  him.  There- 
fore, it  is  considered  that  the  said  plaintiff  take  nothing  by  his  suit,  and 
that  the  said  defendant  do  go  thereof  without  day;  and  it  is  further 
ordered  that  the  said  defendant  do  recover  against  the  said  plaintiff  his 
costs  and  charges  by  him  about  his  defense  in  this  behalf  expended,  to  be 
taxed,  and  that  the  said  defendant  have  execution  therefor. 

Form  of  Judgment  Upon  Verdict  for  Defendant  in  Action  on  the  Case 

(Title  of  cause.) 

In  this  cause,  the  parties  being  in  court,  by  their  respective  attorneys, 
ready  for  trial,  thereupon  came  a  jury,  to  wit:  (insert  the  names  of  the 
jurors),  good  and  lawful  men,  who,  being  duly  chosen,  tried  and  sworn 
well  and  truly  to  try  the  issue  between  the  parties,  after  hearing  the 
proofs  and  allegations  of  the  parties,  the  arguments  of  counsel  and  the 
charge  of  the  court,  retired  from  the  bar,  under  the  charge  of  S.  T.,  an 
officer  of  the  court,  duly  sworn  for  that  purpose,  to  consider  of  their 
verdict  to  be  given,  and,  after  being  absent  for  a  time,  return  into  court 
and  say  upon  their  oath  that  the  said  defendant  is  not  guilty  in  manner 
and  form  as  the  said  plaintiff,  in  his  declaration  in  this  cause,  complained 


986  Judgment  §  8 

against  him.  Therefore,  it  is  considered  that  the  said  plaintiff  take  nothing 
by  his  suit  and  that  the  said  defendant  do  go  thereof  without  day;  and 
it  is  further  ordered  that  the  said  defendant  do  recover  against  the  said 
plaintiff  his  costs  and  charges  by  him  about  his  defense  in  this  behalf 
expended,  to  be  taxed,  and  that  the  said  defendant  have  execution  therefor. 

Form  of  Judgment  Upon  Finding  for  Plaintiff  in  Action  on  the  Case 

(Title  of  cause.) 

In  this  cause,  the  parties  being  in  court,  by  their  respective  attorneys, 
ready  for  trial,  and  the  same  having  been  duly  brought  on  for  trial  before 
the  court,  without  a  jury,  the  court,  having  heard  the  proofs  and  allegations 
of  the  parties  and  the  arguments  of  counsel,  after  mature  deliberation 
thereon,  finds  that  the  said  defendant  is  guilty  in  manner  and  form  as  the 
said  plaintiff,  in  his  declaration  in  this  cause,  complained  against  him  and 
that  the  plaintiff  has  sustained  damages  on  occasion  of  the  premises,  over 
and   above  his  costs  and  charges   by  him   about   his   suit  in  this   behalf 

expended,  in  the  sum  of   dollars.     Therefore,  it  is  considered  that 

the  said  plaintiff  do  recover  against  the  said  defendant  his  damages  afore- 
said, together  with  his  costs  and  charges  aforesaid,  to  be  taxed,  and  that 
the  said  plaintiff  have  execution  therefor. 

Form  of  Judgment  Sustaining  Motion  to  Dismiss  Attacking  the  Declara- 
tion 

(Title  of  cause.) 

In  this  cause,  the  motion  of  the  said  defendant  assailing  the  declaration 
of  the  said  plaintiff  having  been  duly  brought  on  for  argument,  and  the 
premises  being  seen  and  understood  by  the  court  now  here,  and  it  appearing 
that  the  said  declaration  and  the  matters  therein  contained  are  not  sufficient 
in  law  for  the  said  plaintiff  to  have  and  maintain  his  action  against  the 
said  defendant,  therefore,  it  is  considered  that  the  said  plaintiff  take 
nothing  by  his  suit,  that  the  same  be  dismissed,  and  that  the  said  defendant 
do  go  thereof  without  day;  and  it  is  further  considered  that  the  said  de- 
fendant do  recover  against  the  said  plaintiff  his  costs  and  charges  by  him 
about  his  defense  in  this  behalf  expended,  to  be  taxed,  and  that  the  said 
defendant  have  execution  therefor. 

Form  of  Judgment  Overruling  Motion  to  Dismiss  Attacking  the  Declara- 
tion 

(Title  of  cause.) 

In  this  case,  the  motion  of  the  said  defendant  assailing  the  declaration 
of  the  said  plaintiff  having  been  duly  brought  on  for  argument,  and  the 
premises  being  seen  and  understood  by  the  court  now  here,  and  it  appearing 
that  the  said  declaration  and  the  matters  therein  contained  are  sufficient 
in  law  for  the  said  plaintiff  to  have  and  maintain  his  action  against  the 
said  defendant;  therefore,  it  is  considered  that  the  said  motion  be  denied 
with  costs  to  the  said  plaintiff  hereby  taxed  in  the  sum  of dollars. 


§  9  Judgment  987 

§  9.  Parties  to  judgment. 

A  judgment  against  several  defendants  is  proper  only 
where  all  the  defendants  are  jointly  liable  on  the  cause 
of  action,^^  and  a  judgment  against  plaintiff  cannot  be 
entered  in  favor  of  several  defendants  jointly  where  some 
of  them  are  not  found  to  have  been  interested.'^  A  judg- 
ment ordinarily  may  be  rendered  against  all  or  a  part  of 
defendants  where  the  action  is  based  on  a  tort.'* 

It  is  well  settled  that  on  a  joint  debt  no  recovery  can 
be  had  against  less  than  all  the  debtors  unless  one  has 
been  legally  discharged  or  in  fact  there  never  was  any 
joint  obligation.'^  Where  defendants  are  sued  jointly  on 
a  joint  agreement,  plaintiff  cannot  discontinue  as  to  part 
of  defendants  and  recover  against  one  of  them  alone, 
except  where  disability  of  bankruptcy,  infancy  or  the 
like  exists.'^  So  where  plaintiff  sues  two  on  a  contract 
made  by  them  jointly,  but  before  offering  evidence  states 
that  the  two  defendants  did  not  contract  with  him,  but 
that  one  or  the  other  of  them  did,  and  the  evidence 
showed  that  one  of  defendants  made  the  identical  con- 
tract sued  on,  judgment  is  properly  rendered  against 
such  defendant.''''  So  where  an  action  is  brought  against 
several  joint  defendants  but  a  valid  defense  is  shown  by 
part  of  them,  a  judgment  cannot  be  rendered  for  plain- 
tiff against  the  other  defendants  without  taking  a  dis- 
continuance as  to  the  successful  defendants." 

The  right  of  a  plaintiff  to  proceed  against  several  de- 
fendants and  obtain  a  joint  judgment  against  all,  or  a 
judgment  against  one  or  more  of  them,  in  accordance 

32  Anderson  v.  Fruitvalc  Transp.  Sec  also  Eimniele  v.  Huebner,  190 
Co.,  195  Mich.  734.  Mich.   247. 

See  also  Cutler  v.  Spens,  191  Mich.  36  Strohschein     v.     Kranich,     157 

603,  617.  Mich.  335. 

33  Steele  v.  Matteson,  50  Mich.  37  Root  &  McBride  Co.  v.  Walton 
313.  Salt  Ass'n,  140  Mich.  441. 

34  See  Longyear  v.  Gregory,  110  38  Beckman  v.  Sylvester,  109  Mich. 
Mich.  277.  183. 

36  Post    V.    Shafer,    63    Mich.    85. 


988  Judgment  '  §  9 

with  the  facts  as  the  jury  find  them  to  be,  as  provided  for 
by  rule  of  court,  is  considered  elsewhere.^' 

§  10.  Judgment  ag-ainst  part  of  plaintiffs  or  defend- 
ants as  authorized  by  statute. 

"In  any  action  against  two  or  more  defendants,  judg- 
ment may  be  rendered  for  the  plaintiff  against  some  one 
or  more  of  the  defendants,  and  also  in  favor  of  some  one 
or  more  of  the  defendants  against  the  plaintiff,  accord- 
ing as  the  rights  and  liabilities  of  the  respective  parties 
shall  appear,  either  upon  confession,  default,  by  pleading 
or  on  trial;  and  when  judgment  shall  be  rendered  in  favor 
of  any  defendant,  he  shall  recover  costs  against  the  plain- 
tiff, in  the  same  manner  as  though  judgment  had  been 
rendered  for  all  the  defendants;  but  no  judgment  shall 
be  entered  upon  any  purely  several  liability  against  any 
party  not  served  with  process. ' ' " 

**It  shall  not  be  necessary  for  the  plaintiff  to  include  in 
the  same  record  a  judgment  against  all  parties  severally, 
or  jointly  and  severally  liable,  but  judgment  may  be  en- 
tered against  any  of  the  parties  thereto,  whenever  the 
plaintiff  would  be  entitled  to  the  same  if  the  suit  had 
been  commenced  against  such  parties  only;  and  if  the 
trial  or  hearing  of  such  cause  be  put  off  by  any  of  the 
parties,  or  if  a  default  shall  have  been  obtained  against 
part  of  the  defendants,  the  plaintiff  may  proceed  to  the 
hearing  or  trial  against  the  other  parties,  in  the  same 
manner  as  if  the  suit  had  been  commenced  against  the 
other  parties  only,  and  the  action  shall  thereby  be 
severed. ' '  *^ 

§  11.  Motion  for  judgment  by  one  defendant. 

''One  or  more  of  the  defendants  in  any  suit  may  move 
for  judgment  as  in  case  of  nonsuit,  although  the  other 

39  See  Discontinuance.  *1  Jud.   Act,  ch.   22,   §  13 ;    Comp. 

40Jud.   Act,   ch.   22,   §12;    Comp.       Laws  1915,  §12803. 
Laws  1915,  §  12802. 


§  13  Judgment  989 

defendants  shall  not  unite  in  the  motion;  but  one  of  sev- 
eral defendants  jointly  liable  shall  not  make  such  mo- 
tion, unless  the  other  joint  contractors  with  him  shall 
unite  in  the  motion. ' '  *^ 

§  12.  Judgment  in  actions  on  joint  obligations  where 

only  part  of  defendants  served. 

The  statute  provides  that  in  actions  against  two  or 
more  persons  upon  any  joint  obligation,  contract,  or  lia- 
bilitj^,  if  the  process  issued  against  all  the  defendants 
was  served  upon  either  of  them,  the  judgment,  if  ren- 
dered in  favor  of  the  plaintiff,  must  be  against  all  the 
defendants  in  the  same  manner  as  if  all  had  been  served 
with  process;  but  that  such  judgment  shall  be  evidence, 
as  against  defendants  not  served  who  have  not  appeared, 
only  of  the  extent  of  the  plaintiff's  demand  after  their 
liability  has  been  established  by  other  evidence."  And 
special  provision  is  made  as  to  taking  out  execution  in 
such  a  case  against  a  defendant  not  served.** 

§  13.  Conformity  to  pleadings,  evidence,  verdict,  etc. 

The   judgment   must   conform   to   the   jjleadings   and 

42  Jud.  Act,  ch.  22,  §14;  Comp.  fondants  in  the  same  manner  as  if 
Laws  1915,  §  12804.  he    had    been    served    with    process. 

43  Jud.  Act,  ch,  22,  §§  8,  9;  Comp.  This  practice  supersedes  the  former 
Laws  1915,  §§  12798,  12799.  proceeding  by  scire  facias.     If  the 

Statute  is  constitutional.     Brooks  return  to   the  order  to   show  cause 

V.  Mclntyre,  4  Mich.  316.  raises    merely    questions    of    law    or 

Inability   to  serve  codefendant   is  of  fact  not  going  to  the  merits  of 

not  necessary.     Sheldon  Axle  Co.  v.  the   main    action,   they   will   be   dis- 

Landman,  186  Mich.  61.  posed  of  by  the  court.    If,  however, 

44  Jud,  Act,  ch.  22,  §§10,  11;  defenses  are  disclosed  which  might 
Comp.  Laws  1915,  §§12800,  12801,  have  been  pleaded  in  the  main  ac- 
which  provide  that  an  order  may  be  tion,  the  proper  practice  would  bo 
issued  to  show  cause  why  the  plain-  to  permit  a  plea  to  be  entered  to 
tiff  ought  not  to  have  execution  the  declaration  on  file  and  to  pro- 
against  the  debtors  not  served,  and  coed  to  trial  thereon  in  the  usual 
upon  failure  to  appear  or  to  show  manner.  Cummins  &  Beccher,  Mich, 
sufficient  cause  to  the  contrary,  exe-  Jud.  Act,   §  51. 

cution   may   issue   against   such   dc- 


990  Judgment  §  13 

proofs,*^  the  verdict,*^  or,  where  the  trial  is  by  the  court 
without  a  jury,  to  the  findings  of  the  court.*' 

§  14.  Judgment  notwithstanding-  the  verdict. 

A  judgment  may  be  entered  for  one  party  notwith- 
standing the  verdict  was  for  the  opposing  party  where 
the  special  findings  of  the  jury  are  inconsistent  with  the 
general  verdict.*'  Where  there  are  no  such  inconsistent 
findings,  a  judgment  contrary  to  the  verdict,  for  a  dif- 
ferent party,  cannot  be  entered,**  without  a  new  trial," 
even  though  the  verdict  is  against  the  weight  of  evi- 
dence, where  the  evidence  is  contradictory,*^  except  where 
decision  on  a  motion  for  a  directed  verdict  has  been 
reserved."  But  such  a  judgment  should  be  rendered 
where  plaintiff's  pleadings  are  not  sufficient  to  support 
a  judgment  in  his  favor,  and  it  appears  on  the  record 
that  the  verdict  cannot  be  supported  as  a  matter  of 
law."  It  is  provided  by  statute  that  when  a  verdict  shall 
have  been  rendered  in  any  action,  the  plaintiff  shall  not 

45Burchy  v.  Carpenter,  181  Mich.  187  Mich.  586;  Brown  v.  Kalamazoo 

78;  Shaw  v.  Hoffman,  25  Mich.  162  Circuit  Judge,  75  Mich.  274;   Guer- 

(declaration     for     statutory     treble  old  v.  Holtz,  103  Mich.  118;  Hinch- 

damages   not    support    judgment    on  man  v.  Doak,  48  Mich.  168. 

verdict   of   single  damages  for  tres-  47  Wiley  v.  Lovely,  46  Mich.   83; 

pass    at    common    law);    Hinehman  Swcetzer    v.    Mead,    5    Mich.    107; 

V.  Doak,  48  Mich.  168;  Benthien  v.  Brown  v.  MeHugh,  36  Mich.  433. 

Alberts,     154     Mich.     142;     E.     S.  48  See  Trial. 

Knowles  &  Son  v.  Cavanaugh,   144  49  Central  Sav.  Bank  v.  O  'Connor, 

Mich.    260;    Bullock    v.    Ueberroth,  132  Mich.  578.     See  also  County  of 

121  Mich.  293   (recovery  for  breach  Montmorency  v.  Putnam,  144  Mich, 

of   contract   for    sale    of    goods   not  135;   Graves  v.  Dorr  Tp.,  208  Mich. 

\\arranted  where  common  counts  are  558. 

declared  on,  and  specially  for  goods  60  Prowell  v.  Neuendorf,  141  Mich, 

sold   and   delivered)  ;    Williamson   v.  272. 

Haskell,  50  Mich.  364;  Thomas  v.  61  County  of  Montmorency  v.  Put- 
Chicago  &  G.  T.  Ry.  Co.,  72  Mich,  nam,  144  Mich.  135;  Plunkett  v. 
355.  Detroit  Electric  Ey.  Co.,  140  Mich. 

Amount  of  recovery  is  limited  by  299. 

bill     of     particulars.       Bennett     v.  52  See  Trial. 

Smith,  40  Mich.  211.  53  Plunkett  v.  Detroit  Electric  Ey. 

46  Rathbone  v.  Detroit  United  Ry.,  Co.,  140  Mich.  299. 


§  15  Judgment  991 

thereafter  be  nonsuited,  but  that  judgment  shall  be  ren- 
dered upon  the  matter  found  by  such  verdict.** 

§  14a.  Summary  judgment  in  action  on  contract  in  ab- 
sence of  affidavit  of  merits. 

The  Judicature  Act  introduces  two  new  provisions  as 
follows:  "At  any  time  after  any  cause  arising  upon  con- 
tract or  judgment,  or  statute  shall  be  at  issue,  upon  mo- 
tion of  the  plaintiff,  after  the  usual  notice  to  the  defend- 
ant, supported  by  the  affidavit  of  the  plaintiff,  or  any 
one  in  his  behalf  having  knowledge  of  the  facts,  verify- 
ing the  plaintiff's  cause  of  action,  and  stating  the  amount 
claimed,  and  his  belief  that  there  is  no  defense  to  the 
action,  the  court  shall  enter  a  judgment  in  favor  of  the 
plaintiff,  unless  the  defendant  shall  prior  to,  or  at  the 
time  of  hearing  said  motion,  make  and  file  an  affidavit 
of  merits.  Said  affidavit  of  merits  shall  state  whether 
or  not  the  defense  claimed  therein  applies  to  the  whole 
of  the  plaintiff's  claim,  and  if  not,  it  shall  state  definitely 
what  item  or  items  of  the  plaintiff's  claim  and  the  amount 
thereof,  is  admitted."" 

"If  in  any  case  it  appear  upon  the  trial  thereof  to  the 
satisfaction  of  the  court,  than  [that]  any  affidavit  of 
merits  made  therein,  for  the  purpose  of  preventing  a 
summary  judgment,  or  for  the  purpose  of  procuring  a 
continuance,  was  not  made  in  good  faith,  but  was  made 
solely  for  the  purpose  of  delay,  the  court  shall  award 
to  the  plaintiff  in  the  judgment  rendered  therein,  double 
the  amount  of  the  costs  taxable  in  'the  cause. ' '  *^ 

§  15.  Interest. 

Interest  is  collectible  on  executions  on  all  judgments 
at  the  rate  of  five  per  centum  per  annum,  provided  that 

64Jud.    Act,    ch.    22,    §1;    Conip.  60  Jud.   Act,   ch.    18,    §10;    Coinp. 

Laws  1915,  §  12791.  Laws  191"),   8  12582. 

66Jud.    Act,    ch.    18,    §9;    Conip. 
Laws  1915,  §  12581. 


992  Judgment  §  15 

on  a  judgment  rendered  on  any  written  instrument,  hav- 
ing a  different  rate  legal  at  the  time  the  instrument  was 
executed,  the  interest  shall  be  computed  at  the  rate  speci- 
fied in  such  instrument.^'' 

The  judgment  properly  includes  interest  on  the  amount 
of  the  verdict  from  the  time  of  its  rendition  to  the  time 
of  entry  of  judgment,  but  cannot  include  interest  prior 
to  the  verdict  where  not  included  in  the  verdict,  especial- 
ly where  there  is  no  data  on  which  to  figure  the  interest.*^ 

§  16.  Amendment. 

A  judgment  may  in  proper  cases  be  amended,  when  the 
entry  of  it  is  in  some  respects  erroneous,  either  in  form 
or  in  substance. ^^  If  the  amendment  be  in  a  matter  of 
substance,  it  is  essential  that  the  party  whose  interests 
will  be  thereby  injuriously  affected  have  notice  and  be 
given  an  opportunity  to  be  heard.^"  Clerical  errors  may 
be  amended  at  any  time,  even  after  the  term  at  which 
the  judgment  is  rendered,^^  and,  when  apparent  from  the 
record,  will  be  treated  as  amended,  even  though  no 
amendment  be  actually  made.  If  the  amendment  of  a 
judgment  in  respect  of  a  clerical  error  is  sought  to  be 
made  from  what  appears  in  the  other  parts  of  the  record, 
no  notice  is  required  to  be  given  to  the  adverse  party; 
but  if  the  amendment  be  based  upon  something  outside 
the  record  in  the  case,  the  party  adversely  interested 
should  be  given  notice.  Formal  inaccuracies  in  the  judg- 
ment entry  are  cured  by  the  statute  of  amendments.®'^ 

67  Jud.  Act,  ch.  23,  §  20 ;  Comp.  ever,  amendment  held  properly  re- 
Laws  1915,  §  12835;  City  of  Owosso  fused;  Ford  v.  Bailey,  207  Mich.  77, 
V.  Barber  Asphalt  Co.,  192  Mich.  amendment  of  judgment  in  eject- 
122.  meiit  as  to  description  of  land. 

68  Wright  v.  Seeley,  96  Mich.  491 ;  60  People  v.  MeCutcheon,  40  Mich. 
Parker  v.  Lake  Shore  &  M.  S.  Ey.  244 ;  Whitwell  v.  Emory,  3  Mich.  84. 
Co.,  93  Mich.  607;  Bell  v.  Ardis,  61  Whitwell  v.  Emory,  3  Mich. 
38  Mich.  609.  84.     See  Killackcy  v.  Killackey,  156 

69  Ostrowoski    v.    Wayne    Circuit  Mich.  127. 

Judge,   170   Mich.   563,   where,  how-  62  Emery    v.    Whitwell,     6    Mich. 


§  16  Judgment  993 

The  power  to  amend  is  a  liiglily  valuable  one,  and 
should  be  limited  only  within  what  is  necessary  to  keep 
it  within  safe  bounds.  Where  the  record  itself  furnishes 
the  data  for  required  amendments,  great  liberality  should 
be  allowed,  because  the  danger  of  injustice  in  permitting 
amendments  in  such  cases  is  very  slight.  But  where  an 
amendment  is  to  be  made  upon  an  extrinsic  showing,  all 
practicable  precautions  should  be  taken  that  no  one  be 
wronged  by  action  of  the  court;  and,  as  most  alleged 
facts  are  susceptible  of  contradiction,  there  ought  al- 
ways, when  practicable,  to  be  notice  to  the  party  adverse- 
ly interested,  in  order  that  he  may  have  the  opportunity 
to  make  a  counter- showing;  and  the  more  ancient  are  the 
proceedings  the  greater  is  the  importance  of  giving  no- 
tice.^^  The  application  for  leave  to  amend  should  not 
be  -delayed  too  long,  or  the  court  may,  in  the  exercise  of 
its  discretion,  refuse  to  permit  the  amendment.®*  The 
application  should,  indeed,  be  made  with  the  utmost 
promptness.®^ 

Where  there  has  been  obvious  error  of  the  clerk  in  the 
entry  of  the  amount  recovered  by  judgment,  the  entry 
should  be  amended.®®  So  the  name  of  a  party  against 
whom  judgment  is  rendered  may  be  amended  where  there 
is  no  question  of  identity.®'  Where  the  judgment  is  for 
an  amount  in  excess  of  the  ad  damnum  in  the  declara- 
tion, the  error  cannot  be  cured  by  an  amendment  of  the 
judgment.®^  To  authorize  an  amendment  from  the  record, 

474;   Hall  v.  Grovier,  25  Mich.  428;  49  Mich.   628;   Montgomery  v.  Mer- 

Whittemore    v.    Stephens,    48    Mich.  rill,  36  Mich.  97;   Salter  v.  Suther- 

573;   Lyman  v.  Becannon,  29  Mich.  land,   125   Mich.   662. 

466;    Souvais   v.    Leavitt,    53    Mich.  66  Montgomery  v,  Merrill,  36  Mich, 

577;    Merrick   v.   Mayhue,   40   Mich.  97. 

196;  Ferton  V.  Feller,  33  Mich.  199,  66  Emery    v.    Whitwell,    6    Mich. 

judgment  in  form  assumpsit  instead  474. 

of  trespass.  67  Merrick    v.    Mayhue,    40    Mich. 

63  Montgomery      v.      Merrill,      36  196. 

Mich.  97.  68  Kenyon  v.  Woodward,  16  Mich. 

64  Gray  v.  Saginaw  Circuit  Judge,       326,   holding   that   the   court   slioulii 

1   Abbott— 63 


994  Judgment  §  16 

there  must  be  something  in  the  record  to  amend  from.^® 
On  the  motion,  a  question  of  retaxation  of  costs  cannot 
be  raised.'" 

]\Iistakes  in  the  record  may  be  corrected,  and  omis- 
sions supplied,  nunc  pro  tunc,  where  neither  party  has 
been  misled.'^  Where,  by  mistake,  the  clerk  enters  a 
judgment  as  if  taken  by  default,  where  issue  had  been 
duly  joined,  and  no  defense  interposed  but  defendant 
consented  to  judgment,  an  amendment  nunc  pro  tunc 
should  be  allowed.'^ 

In  the  allowance  of  these  amendments,  courts  are  gov- 
erned by  the  general  principles  of  promoting  substantial 
justice  between  the  parties,  and  payment  of  the  costs 
incident  to  the  amendment  is  annexed  as  a  condition  to 
granting  it.  So  the  order  may  impose  other  conditions 
in  a  proper  case.'^ 

§  17.  Opening  or  vacating. 

A  judgment  may  be  set  aside  by  the  trial  court  even 
after  the  term  at  which  it  was  rendered.'*  The  granting 
of  the  application  is  addressed  to  the  sound  discretion 
of  the  court,'*  but  an  order  setting  aside  a  judgment  pur- 
suant to  a  stipulation  cannot  be  sustained  as  an  exer- 
cise of  discretion  where  there  was  no  compliance  with 
the  conditions  in  the  stipulation.'®  And  a  party  is  en- 
titled as  of  right  to  an  order  opening  the  judgment  where 

either   allow   plaintiff   to    remit    the  74  Campau  v.  Coates,  17  Mich.  235. 

excess   or   make   the   amendment   on  75  City   of   Detroit   v.    Jackson,    1 

condition    of    assenting    to    a    new  Doug.  106. 

trial  if  defendant  so  elected.  Judgment  will  not  be  vacated  be- 

69  Salter  v.  Sutherland,  25  Mich.  cause  entered  prematurely  unless  in- 
662.  jury   is   shown   from   the   premature 

70  Kraft  V.  Raths,  45  Mich.  20.  entry.     Wisconsin  Chair  Co.  v.  Char- 

71  Souvais  V.  Leavitt,  53  Mich.  577.  levoix  Circuit  Judge,  189  Mich.  548. 

72  Grand  Rapids  Sav.  Bank  v.  76  People  v.  Branch  Circuit  Judge, 
Widdiconib,  114  Mich.  639.  26  Mich.  370. 

73  Salter  v.  Sutherland,  125  Mich. 
662. 


^  17  Judgment  995 

it  was  rendered  in  his  absence,  without  proof  of  notice 
to  him  appearing  on  the  files  of  the  court,  where  he  moves 
promptly,  unless  it  is  then  made  to  appear  that  legal  no- 
tice was  in  fact  given.''"'^  The  court  has  power  to  relieve 
a  party  to  an  action  from  a  judgment  obtained  against 
him  through  the  negligence,  fraud,  or  ignorance  of  his 
attorney;  and  when  an  attorney  neglected  his  client's 
case,  and  suffered  judgment  to  pass  against  him,  the 
client  himself  being  guilty  of  no  laches,  it  was  held  that 
he  was  not  confined  to  his  remedy  against  the  attorney, 
but  that  the  court,  in  the  exercise  of  its  discretion,  might 
set  aside  the  judgment,  and  allow  him  to  defend^®  Where 
a  written  request  is  made  for  a  finding  of  facts  but  no 
such  finding  is  made,  it  is  proper  to  set  aside  the  judg- 
ment and  enter  a  new  one  after  the  finding  is  filed. '^ 
Where  it  is  claimed  that  a  judgment  has  been  obtained 
by  fraud,  a  motion  to  set  it  aside  is  not  proper  after  the 
lapse  of  several  years.^® 

In  its  discretion,  the  court  may  vacate  a  judgment  of 
its  own  motion.'^ 

A  judgment  may  be  vacated  by  a  court  of  equity  in  a 
proper  case,  where  injustice  is  clearly  made  to  appear, 
but  such  jurisdiction  is  rarely  exercised. ^'^  When  a  judg- 
ment may  be  vacated  by  a  court  of  equity  will  not  be 
considered  herein  because  relating  to  equitable  relief 
which  is  not  within  the  scope  of  this  work. 

A  stranger  to  the  record  cannot  move.*'  The  motion 
must  be  made  promptly  or  the  delay  explained,  as  it 
may  be  denied  because  of  laches  in  moving.**    And  it  is 

77  People  V.  Bacon,  18  Mich.  247.  82  Finn  v.  Adams,  138  Mich.  258. 

78  Loree  v.  Eeeves,  2  Mich.  133.  83  People      v.      Calhoun      Circuit 

79  Hunt  V.  Patterson,  38  Mich.  95.  .Tudges,  1  Doug.  417. 

80  Jennison  v.  Haire,  29  Mich.  207,  84  People  v.  Calhoun  Circuit 
219,  holding  remedy  to  be  by  suit  Judges,  1  Doug.  417,  where  two 
in  equity.  years  unexplained   delay  held   fatal. 

81  Alspaugh       V.      Ionia      Circuit 
Judge,  126  Mich.  67. 


996  Judgment  §  17 

provided  by  statute  that  a  judgment  shall  not  be  set 
aside  for  irregularity,  on  motion,  unless  the  motion  is 
made  Avithin  one  year  after  the  judgment  is  rendered.'^ 
Generally,  notice  of  tlie  motion  should  be  served.'® 

An  order  vacating  a  judgment  destroys  its  effect  as  a 
bar  or  estoppel,  and  if  execution  has  been  issued,  the  ex- 
ecution falls  with  the  judgment.  Vacating  a  judgment 
as  to  one  of  two  joint  debtors  vacates  it  as  to  both.'''' 

§  18.  Arrest  of  judgment. 

A  motion  for  arrest  of  judgment  must  always  be 
founded  upon  some  cause  appearing  upon  the  face  of 
the  record.''  But  only  errors  in  substance  will  be  con- 
sidered, and  only  such  can  prevail  as  are  not  cured  by 
verdict.'^  It  is  an  invariable  rule  with  regard  to  arrests 
of  judgment  upon  matters  of  law  that  whatever  is  al- 
leged in  arrest  of  judgment  must  be  such  matter  as 
would  have  been  sufficient  to  overturn  the  action.^"  But 
the  converse  of  this,  that  everything  which  would  have 
been  sufficient  to  overturn  the  action  Avill  be  good  in  ar- 
rest of  judgment,  is  not  always  true,  many  such  matters 
being  cured  by  verdict  at  common  law  or  by  the  statutes. 

Motions  in  arrest  of  judgment,  with  the  reasons  on 
w^hich  they  are  founded,  must  be  filed,  and  a  copy  there- 
of served  on  the  opposite  party,  within  five  days  after 

85.Ju(l.    Aft,    ch.    22,    §2;    Comp.  Barnes  v.  Hunl,  11  Mass.  59;  Hascl- 

Laws  1915,  §  12792.  ton  v.  Wearo,  8  Vt.  480;  Joy  v.  Hill, 

86  Sec  Vincent  v.  Benzie  Circuit  ;56  Vt.  838;  Culver  v.  Third  Nat. 
Judge,  i;{9  Mich.  90.  Bank,    64   111.   528;    Sims   v.   Dame, 

87  Van  Renselaer  v.  Whiting,  12  118  Ind.  127;  Benson  v.  Swift,  2 
Mich.  449.  See  McArthur  v.  Oliver,  Mass.  52;  Payne  v.  Smith,  12  N. 
53  Mich.  299.  H.  34;   Powell  v.  Bennett,  131  Ind. 

88  State    v.    Carver,   49    Me.    588;  127;  Hutchins  v.  Adams,  3  Me.  176; 
Lee    v.    Brown,    5    Wend.    (N.    Y.)  Burdsall  v.  Davies,  58  Mo.   138. 
221;    Campbell   v.    Stakes,   2   Wend.  90  Phelps    v.    Baldwin,    17    Conn. 
(N.  Y.)   137;  Williamson  v.  Branch  212;    Smith    v.   Curry,   16   111.   147; 
Bank,  3   Ala.  504.  Kingsley     v.     Bill,     9     Mass.     197; 

80  Dayton  v.  Williams,  2  Doug.  Sewall's  Falls  Bridge  v.  Fisk,  23 
81;    Wilson   v.    Myrick,   26   111.   34;       N.  H.  171. 


5  22  Judgment  997 

the  rendition  of  the  verdict  in  the  case  of  a  trial  by  jury, 
and  within  a  like  time  after  the  decision  of  the  court 
when  the  cause  has  been  tried  by  the  court,  or  within 
such  further  time  as  shall  be  allowed  therefor  by  the 
court  or  judge.  Such  motions  may  be  brought  on  for 
hearing  by  either  party,  and  the  decision  on  such  mo- 
tion may  be  made  by  the  judge  and  entered  in  vacation 
or  in  term.^^ 

The  motion  may  be  made  after  entry  of  judgment,®'^ 
and  proceedings  may  be  stayed  on  complying  with  the 
statutes  and  rule  of  court.®' 

§  19.  Lien. 

No  lien  is  acquired  on  real  estate  in  this  state  by  a 
judgment  until  actual  levy  of  an  execution.®* 

§  20.  Satisfaction  by  arrest. 

Arrest  on  a  body  execution  and  subsequent  discharge 
because  the  writ  was  void  is  not  a  satisfaction  of  the 
judgment.®^ 

§21.  Void  or  voidable  judgments. 

A  void  judgment  may  be  collaterally  attacked  but  it 
is  otherwise  as  to  a  merely  voidable  judgment.  Judg- 
ments and  orders,  where  the  judge  is  disqualified,  are  not 
merely  voidable  but  are  void.®^  A  judgment  cannot  be 
collaterally  attacked  because  an  attorney  who  appeared 
for  a  defendant  served  with  process  had  no  authority 
to  act.®' 

§  22.  Effect  of  judgment. 

The  judgment  of  a  court  of  competent  jurisdiction 
directly  upon  a  point  or  matter  in  litigation  is  conclu- 

91  Cir.  Ct.  Eule  48.  95  In  re  Lauer's  Estate,  184  Mich. 

92  Harvey  v.  McAdams,  32   Mich.      497. 

472.  96  Sandusky  Grain   Co.   v.   Sanilac 

93  See  Stay  of  Proceedings.  Circuit  .Tudjjo,  184  Mich.  126. 

94  Schclowski  v.  Pawloski,  168  97  Rohrbachcr  v.  Walsh,  170  Mich. 
Mich.  664,  667.  59. 


998  Judgment  §  22 

sive  upon  the  parties  and  their  privies,  so  that  they  are 
estopped  from  ever  afterwards  contesting  the  same  point 
or  matter  with  the  same  parties  or  their  privies,  either 
in  the  same  court  or  in  another,  and  either  in  the  same 
form  of  action  or  in  a  different  one.  The  point  or  matter 
so  decided  is  *'res  adjudicata."  Although  the  objects 
and  subject-matter  of  the  two  suits  or  proceedings  be 
different,  yet  the  judgment  of  a  court  of  competent  juris- 
diction upon  a  particular  matter,  fact  or  point  once  liti- 
gated and  determined  is  conclusive  between  the  parties 
and  their  privies.®^  It  is  conclusive,  not  only  in  a  col- 
lateral suit  in  which  the  same  question  arises,  but  also  in 
any  new  suit  in  which  either  party  by  his  pleadings  en- 
deavors to  put  in  issue,  and  thus  re-tiy,  the  subject- 
matter  of  the  former  adjudication  or  any  portion  there- 
of.»» 

It  is  of  no  importance  whether  the  suit  was  contested 
or  was  suffered  to  go  by  default,  nor  whether,  if  it  was 
contested,  all  the  questions  were  raised  by  the  pleadings 
or  upon  the  trial  which  might  have  been  raised,  nor 
whether  the  court  was  right  or  wrong  in  its  conclusions 
upon  the  facts  or  the  law.  It  is  sufficient  that  the  case 
proceeded  to  judgment  according  to  the  forms  of  law 
and  that  the  court  rendered  a  judgment  which  by  its 
terms  or  legal  effect  covered  the  controversy.^  The 
estopi^el  does  not  depend  at  all  upon  the  question  whether 
justice  was  done  in  the  first  suit,  but  upon  the  merits 
having  been  once  considered  and  passed  upon.''  It  is 
also  immaterial  whether  the  point  was  actually  raised 

9»  Wales   v.    Lyon,    2    Mich.    276;  Mich.  90;   Hudson  v.   Judge  of  Su- 

Hazen  v.  Reed,  30  Mich.  331;  Axford  i>erior  Court,  42  Mich.  239. 

V.  Graham,  57  Mich.  422;  La  Vassar  99  Jacobson  v.  Miller,  41  Mich.  90. 

V.     Chesbrough     Lumber     Co.,     190  1  Jacobson  v.  Miller,  41  Mich.  90; 

Mich.  403 ;  Burgess  v.  Stribling,  134  Town     v.     Smith,     14     Mich.     348 ; 

Mich.  33 ;   Clark  v.  Wiles,  54  Mich.  Ringelberg    v.    Peterson,    76    Mich. 

323;    Van    Kleek    v.    Eggleston,    7  107. 

Mich,    511;    Jacobson   v.   Miller,   41  2  Fifield  v.  Edwards,  39  Mich.  264. 


§  22  Judgment  999 

or  litigated  in  the  first  suit  or  not,  if  its  determination 
was  necessarily  included  in  the  judgment.' 

But  a  judgment,  to  constitute  a  bar  in  a  subsequent 
action,  must  be  rendered  upon  the  merits,  upon  the  same 
matter  in  issue  and  between  the  same  parties  or  their 
privies.*  Therefore  a  judgment  of  non-suit  does  not  bar 
a  subsequent  suit  for  the  same  cause  of  action,  as  would 
a  judgment  for  the  defendant  on  the  merits.^  So,  also,  a 
judgment  sustaining  an  objection  to  the  declaration  on 
the  ground  that  it  fails  to  state  a  cause  of  action  does 
not  bar  a  second  suit  founded  on  the  same  transaction 
the  declaration  in  which  states  a  cause  of  action,  because 
the  merits  of  the  plaintiff's  case  cannot  be  said  to  have 
been  adjudicated  when  his  declaration  failed  to  state  any 
cause  of  action.^  In  order  to  constitute  a  bar,  therefore, 
it  must  appear  that  the  judgment  was  rendered  upon  the 
merits  and  that  the  matter  claimed  to  be  res  adjudicata 
was  involved  in  the  litigation.'  If  this  does  not  appear 
from  the  face  of  the  judgment  and  the  record  preceding 
it,  as  often  it  does  not,  resort  may  be  had  to  parol  evi- 

3  Barker  v.  Cleveland,  19  Mich.  177;  Fifield  v.  Edwards,  39  Mich. 
230;  Jaeobson  v.  Miller,  41  Mich.  264;  Jacobson  v.  Miller,  41  Mich. 
90;  Adams  v.  Cameron,  40  Mich.  90;  Greenlee  v.  Lowing,  35  Mich. 
506;  Harrington  v.  Huff  &  Mitchell  63;  Murphy  Chair  Co.  v.  American 
Co.,  155  Mich.  139;  Pierson  v.  Con-  Radiator  Co.,  172  Mich.  14;  LeRoy 
ley,  95  Mich.  619;  Kellogg  v.  v.  Collins,  165  Mich.  380;  Cocker- 
Thompson's  Estate,  115  Mich.  618;  line  v.  Fisher,  140  Mich.  95;  Hoff- 
People  V.  Grand  Haven,  etc.,  R.  Co.,  man  v.  Silverthorn,  137  Mich.  60; 
157  Mich.  144;  Burgess  v.  Stribling,  Allen  v.  Duffie,  43  Mich.  1. 

134     Mich.     33 ;     Wales     v.     Lyon,  6  Bowne  v.  Johnson,  1  Doug.  185 ; 

2   Mich.   276;    Detroit,    etc.,   R.   Co.  Deneen  v.  Houghton  County  Street 

V.  McCammon,  108  Mich.  368 ;  Jung-  R.    Co.,    150    Mich.    235 ;    National 

nitsch    V.    Michigan   Malleable    Iron  Bank  of  Oshkosh  v.  First  Nat.  Bank, 

Co.,   121   Mich.   460;    La  Vassar  v.  100  Mich.  485. 

Chesbrough  Lumber  Co.,  190  Mich.  6  Rodman    v.    Michigan    Cent.    R. 

403;   Carr  v.  Brick,  113  Mich.  664;  Co.,  59  Mich.  395. 

Hazen  V.  Reed,  30  Mich.  331 ;  Gould  7  Wood    v.    Faut,    55    Mich.    185; 

v.  Vaughan,  30  Midi.  376.  Bond  v.   Markstrum,   102   Mich.   11; 

4  Tucker    v.    Rohrback,    13    Mich.  Fifield  v.  Edwards,  39  Mich.  264. 
73 ;    Franks  v.   Fechoimer,  44   Mich. 


1000  Judgment  §  22 

dence  to  show  whether  the  particular  point  was,  or  was 
not,  litigated  and  decided  by  the  judgment.' 

§  23.  Persons  affected. 

The  judgment  in  an  action  is  conclusive  only  upon  the 
parties  and  their  privies.®  A  party,  in  the  sense  in  which 
the  word  is  here  used,  is  one  who  is  directly  interested  in 
the  subject-matter,  having  the  right  to  make  defense  or 
control  the  proceedings  and  appeal  from  the  judgment. 
Persons  who  have  not  these  rights  are  regarded  as 
strangers  to  the  cause.  Judgments,  however,  in  proceed- 
ings in  rem,  are  binding  and  conclusive  not  only  upon 
the  parties  actually  litigating,  but  also  upon  all  others.*® 

§  24.  Pleading  a  judgment. 

By  rule  of  court,  in  pleading  a  judgment,  it  is  suffi- 
cient to  allege  generally  that  judgment  was  duly  given 
or  made."  Independent  of  statute  or  rule  of  court,  it  has 
been  held  that  a  declaration  on  a  judgment  which  fails 
to  give  the  name  of  the  plaintiff  and  the  date  of  the  judg- 
ment or  to  state  that  it  is  in  force  is  insufficient,**  and 
that  the  judgment  must  be  described  with  accuracy." 

Form  of  Declaration  on  a  Judgment 

The  plaintiff  says: 

1.  That  the  said  plaintiff,  heretofore,  on  the day  of ,  A.  D. 

,  at  the  term  of  the  circuit  court  for  the  county  of appointed 

8  Lyman  v.  Beeannon,  29  Mich.  624;  Kyerson  v.  Eldred,  18  Mich. 
466;  Bond  v.  Markstrum,  102  Mich.  12;  Bachelder  v.  Brown,  47  Mich. 
11;  Hoffman  v.  Silverthom,  137  366;  Wray-Austin  Machinery  Co.  v. 
Mich.  60.  Flower,   140   Mich.   452;    Vincent  v. 

9  Hale  v.  Chandler,  3  Mich.  531;  Hansen,  113  Mich.  173;  Fisher  v. 
Huntoon  v.  Russell,  41  Mich.  316;  Wineman,  125  Mich.  642;  Willsie  v. 
Hale  V.  Board  of  Baldwin  Tp.,  49  City  of  Ionia,  137  Mich.  445;  Ax- 
Mich.  270;   Wales  v.  Lyon,  2  Mich.  ford  v.  Graham,  57  Mich.  422. 

276;  West  Park  Ass'n  v.  Pere  Mar-  10  Hale  v.  Chandler,  3  Mich.  531. 

quette  R.  Co.,  172  Mich.  179;  Waldo  H  Cir.  Ct.  Rule  21,  §4. 

V.  Waldo,  52  Mich.  91;   Yeomans  v.  12  Smith   v.   Cowles,   123   Mich.   4. 

Ionia    Supervisors,    174    Mich.    451;  18  Gooding  v.  Hingston,  20  Mich. 

Besancon     v.    Brownson,    39     Mich.  439. 

388;   Dickinson  v.   Seaver,  44  Mich. 


Judicature  Act  1001 

to  be  held  on  the  day  of  ,  A.  D ,  by  the  considera- 
tion and  judgment  of  the  said  court,  recovered  against  the  said  defendant 

the  sum  of dollars,  which,  in  and  by  the  said  court,  was  then  and 

there  adjudged  to  the  said  plaintiff  for  his  damages  which  he  had  sustained 
as  well  by  reason  of  the  non-performance  by  the  said  defendant  of  certain 
undertakings  and  promises,  then  lately  made  by  the  said  defendant  to  the 
said  plaintiff,  as  for  his  costs  and  charges  by  the  said  plaintiff  about  his 
suit  in  that  behalf  expended.  2.  That  said  judgment  now  remains  and 
continues  in  full  force  and  effect,  not  reversed,  satisfied  or  otherwise 
annulled.  3.  That  the  said  defendant,  although  requested  so  to  do,  has 
not  paid  the  said  sum  of  money,  or  any  part  thereof,  to  the  said  plaintiff. 

Form  of  Notice  of  Former  Judgment  Under  Plea  of  General  Issue 

To  the  said  Plaintiff: 

You  will  please  to  take  notice  that,  on  the  trial  of  this  cause,  the  said 
defendant  will  give  in  evidence  and  insist,  in  his  defense:  1.  That  on  the 
day  of  ,  A.  D ,  the  said  plaintiff  recovered  a  judg- 
ment  in    the   circuit  court    for   the   county    of    ,    against   the    said 

defendant,  for  the  sum  of    dollars,   damages,  and    dollars, 

costs  of  suit,  for  the  same  cause  of  action  as  that  set  forth  in  the  said 
plaiiltiff  's  declaration  in  this  cause. 

K.  L., 

Attorney  for  Defendant. 

JUDICATURE  ACT 

The  statutes  governing  practice  in  this  state  are  to  be 
found  in  the  Judicature  Act  known  and  cited  as  "The 
Judicature  Act  of  nineteen  hundred  fifteen,"  enacted  as 
a  revision  and  compilation  of  the  various  practice 
statutes.  Quite  a  number  of  the  earlier  statutes  relat- 
ing to  practice  are  expressly  repealed  by  the  Judicature 
Act,^  while  many  other  practice  statutes  are  modified  in 
a  greater  or  less  extent.  It  is  therefore  necessary  to  care- 
fully consider  decisions  of  the  supreme  court  of  this  state 
decided  before  the  Judicature  Act  to  ascertain  whether 
a  repeal  or  modification  of  the  statutes,  or  the  enact- 

1  In    the    title    of    the    act    it    re-  act, ' '  and  in  chap.  81  are  collected 

peals   "all   acts   and  parts   of  acts  a  list  of  statutes  repealed  except  in 

inconsistent  therewith  or  eontraven-  so   far   as   re-enacted  by   the   Judi- 

ing   any    of   the    provisions   of   this  cature  Act. 


1002  Judicature  Act 

ment  of  new  statutes,  by  the  Judicature  Act  have  affected 
them  as  controlling  authority  in  this  state. 

The  principal  purpose  of  the  Judicature  Act  is  to  sim- 
plify practice,  and  the  effect  thereof  is  to  put  this  state 
in  the  front  ranks  of  the  states  which  have  reformed 
their  procedure  and  in  several  respects  to  go  beyond 
many  of  the  so-called  Code  states  in  this  respect.  The 
principal  changes  are  the  abolition  of  forms  of  action 
in  effect,  except  replevin  and  ejectment;^  the  simplifica- 
tion of  pleadings  and  the  doing  away  with  demurrers  and 
pleas  in  abatement;^  the  extension  of  the  power  to  join 
causes  of  action  in  one  suit;*  and  the  adoption  of  the 
real  party  in  interest  rule,  so  far  as  parties  to  actions 
are  concerned,  and  liberal  provisions  relating  to  the  right 
to  intervene  in  actions.^  In  addition,  many  other  more 
or  less  important  changes  are  noticed  in  connection  with 
particular  proceedings,  and  in  many  instances  a  num- 
ber of  statutes  are  grouped  together  and  codified  in  one 
provision.  In  line  with  such  changes  new  rules  of  court 
have  been  adopted,^  making  further  material  changes  in 
the  law  relating  to  pleadings,''  etc. 

It  is  expressly  provided  that  the  Judicature  Act  is 
'^remedial  in  character,  and  as  such  shall  be  liberally 
construed  to  effectuate  the  intents  and  purposes  there- 
of."* 

JUDICIAL  ACTION 

See  Courts. 

JUDICIAL  NOTICE 

See  Pleading;  Evidence. 

2  See  Actions.  6  See  Rules  of  Court. 

3  See  Pleading,  7  See  Pleading. 

4  See   Joinder  and  Splitting   of  8Jud.  Act,  §2;  Comp.  Laws  1915, 
Causes  op  Action.                                   §  12005. 

6  See  Parties. 


See  Courts. 


See  Affidavits. 


Jury  1003 

JUDICIAL  POWER 

JURAT 


JURISDICTION 

See  Courts;  Supreme  Court;  Circuit  Courts;  Probate  Courts;  Jus- 
tices OF  THE  Peace;  Appearance;  Costs;  Mandamus. 

JURY 

§    1.  Demand  for. 

§    2.  ■  Filing  demand  to  avoid  reference. 

§    3.  Court  may  order  jury  on  its  own  motion. 

§    4.  Origin  and  development  of  trial  by  jury. 

§    5.  Right  to  jury  as  preserved  by  constitution. 

§    6.  Qualifications  of  jurors. 

§    7.  Exemptions  from  service  as  juror  and  excusing  jurors. 

§    8.  Exemption  not  disqualification. 

I    9.  Drawing  and  summoning  of  jurors, 

§  10.  Additional  jurors. 

§  11.  Drawing  and  calling  jurors  for  trial  of  an  issue. 

§  12.  When  talesmen  may  be  summoned. 

§  13.  Number  of  jurors. 

§  14.  Administering  oath  to  jury. 

§  15.  Challenges  of  jury  or  jurors. 

§  16.  Challenges  to  the  array. 

§  17.  Challenges  to  the  polls — Peremptory  challenges. 

§  18.  Challenges  for  cause. 

§  19.  Scope  of  examination  of  jurors. 

§  20.  Eejection   of  juror  by  court  of  its  own  motion. 

§  21.  Special  or  struck  juries. 

§  22.  Inability  of  juror  to  attend  or  serve  after  jury  has  been  impaneled. 

§  23.  Fine  for  neglect  to  attend  as  juror. 

Cross-references:  Trial;  Instructions;  Verdict;  New  Trial.  Right 
to  jury  in  particular  actions  or  proceedings,  see  Attorneys  (disbarment 
proceedings)';  Mandamus;   Quo  Warranto;  and  other  particular  titles. 

§  1.  Demand  for. 

When  a  cause  is  at  an  issue  of  fact,  it  is  incumbent 
upon  each  of  tlie  parties  to  determine,  in  seasonable  time, 
whether,  considering  all  the  circumstances  of  the  case,  it 


1004  Jury  §  1 

will  be  advantageous  to  have  the  issue  of  fact  tried  by 
a  jury  or  by  the  court  without  a  jury.  The  constitution 
of  the  state  contains  a  provision  that  the  right  of  trial 
by  jury  shall  remain,  but  shall  be  deemed  to  be  waived 
in  all  civil  cases  unless  demanded  by  one  of  the  parties 
in  such  manner  as  shall  be  prescribed  by  law.^  And  in 
accordance  with  this,  it  has  been  provided  by  statute 
that  all  issues  and  questions  of  fact  shall  be  tried  by  the 
court,  unless  a  jury  be  demanded  by  one  of  the  parties 
in  a  manner  prescribed  by  the  rules  of  the  court,  but 
that,  in  all  actions  of  tort,  and  in  all  other  actions  the 
subject-matters  whereof  are,  in  the  opinion  of  the  court, 
peculiarly  proper  for  the  consideration  of  a  jury,  it  shall 
be  competent  for  the  court  to  order  the  cause  to  be  tried 
by  a  jury.^  A  demand  for  a  jury  is  therefore  necessary 
to  entitle  a  party,  as  a  matter  of  strict  right,  to  a  jury 
trial. 

This  demand  is  required  to  be  in  writing  and  to  be 
filed  with  the  clerk  within  ten  days  after  the  issue  is 
joined  in  the  cause.'  But  the  court  may,  in  its  discretion, 
transfer  any  case  to  the  jury  calendar  although  no  de- 
mand for  a  jury  has  been  so  made  and  filed.* 

1  Const.    Art.    II,    sec.    12;    Odell  Court    may,    of    its    own    motion, 

V.  Reynolds,  40  Mich.  21;  People  v.  order  a  ease  tried  by  jury.     People 

Hoffman,    3    Mich.    248;    Boatz    v.  v.  Detroit  Superior  Judge,  41  Mich. 

Berg,    51    Mich.    8;    Lymburner    v.  31. 

Jenkinson,    50   Mich.    488;    Hopkins  3  Cir.    Ct.    Rule    39.      See    In    re 

V.   Sanford,   41   Mich.   243;    Pontiae  McNamara's  Estate,  166  Mich.  451. 

&  L.  Plank  Road  Co.  v.  Hopkinson,  Under  former  rule,  time  was  eight 

69  Mich.  10.  days    before    the    first    day    of    the 

In   criminal   cases,   no   demand   is  term, 

necessary  and  the  legislature  cannot  Stipulation  for  a  reference  is  not 

divest    any    substantial    incident    of  operative    after    judgment    and    re- 

the  right  of  trial  by  jury.     Swart  v.  versal   on    ai)peal,   but   a   jury   trial 

Kimball,    43    Mich.    443;    Ward    v.  may  then  be  demanded.     Hopkins  v. 

People,  30  Mich.  116;  Hill  v.  People,  Stanford,  41  Mich.  243, 

16    Mich.   351;    People   v.   Smith,   9  4  Cir.  Ct.  Rule  39. 
Mich.  193. 

2Jud.    Act,    ch.    18,    §12;    Comp. 
Laws  1915,  §  12584. 


§  3  Jury  1005 

The  party  demanding  a  jury  is  required  to  pay  the 
sum  of  three  dollars  to  the  clerk  before  the  impaneling 
of  the  jury  is  begun.  It  is  good  practice  to  pay  the  jury 
fee  to  the  clerk  at  the  time  of  filing  the  demand  for  the 
jury,  but  it  need  not  be  paid  at  that  time.® 

§  2.  Filing  demand  to  avoid  reference. 

In  cases  where  the  trial  of  an  issue  of  fact  requires 
the  examination  of  mutual  accounts  or  of  a  long  account 
on  one  side  only,  or  where  the  taking  of  an  account  is 
necessary  for  the  information  of  the  court  before  judg- 
ment, a  party  is  liable  to  be  deprived  of  a  jury  trial  by 
the  cause  being  referred  under  the  statute,  unless  he  is 
duly  prompt  in  demanding  a  trial  by  jury.  To  avoid  a 
reference  in  such  cases  and  secure  the  right  to  have  the 
issue  tried  by  a  jury,  the  party  should,  within  ten  days 
after  joining  issue,  file  with  the  clerk  a  written  demand 
for 'a  trial  by  jury.^  If  the  case  be  an  appeal  case  in  which 
the  issue  was  joined  in  justice's  court,  so  that  it  is  im- 
possible for  a  party  to  demand  a  jury  for  the  trial  in  the 
circuit  court  within  ten  days  from  the  joining  of  the 
issue,  of  course,  the  party  cannot,  by  reason  of  having 
failed  to  perform  an  impossibility,  be  deprived  of  a  jury 
trial  by  the  court  directing  a  reference  of  the  cause.'''  In 
such  case,  the  party  should  demand  a  jury  as  soon  as 
practicable  after  the  return  to  the  appeal  has  been  filed 
in  the  circuit  court  and  within  ten  days  thereafter. 

§  3.  Court  may  order  jury  on  its  own  motion. 

In  cases  where  neither  party  has  demanded  a  jury,  the 
court  may  nevertheless  in  all  actions  of  tort,  and  in  all 

BOdell  V.  Reynolds,  40  Mich.  21;  6  Jud.    Act,   ch.    18,    §68;    Comp. 

Pontiac    &    L.    Plank    Eoad    Co.    v.  Laws    1915,    S  12640;     Hollands    v. 

Hoi)kinson,    69    Mich.    10;    McGraw  Wayne    Circuit     Judge,    117     Mich. 

V.  Sturgeon,    29    Mich.    426.      As    to  .326. 

fees  of  jurors,  see  Pub.  Acts  1917,  7  Odell  v.   Eeynolds,  40  Mich.   21. 
No.   238. 


1006  Jury  §  3 

other  actions  the  subject-matters  whereof  are,  in  the 
opinion  of  the  court,  peculiarly  proper  for  the  considera- 
tion of  a  jury,  order  the  cause  to  be  tried  by  a  jury.*  This 
the  judge  may  do  for  his  own  satisfaction,  and  it  is  not 
a  matter  which  concerns  the  parties  who  have  not  de- 
manded a  jury.® 

§  4.  Origin  and  development  of  trial  by  jury. 

The  origin  of  the  institution  of  trial  by  jury  is  involved 
in  great  obscurity  and  doubt.  It  belongs,  however,  to 
very  early  times  and  has  been  variously  ascribed  by  some 
writers  to  Woden,  the  great  legislator  of  the  ancient 
Britons,  by  others  to  Regner,  king  of  Sweden  and  Den- 
mark, and  by  others  to  Alfred  the  Great. 

This  method  of  trial  was  in  use  at  a  remote  period,  not 
only  in  England,  where  it  is  said  by  Blackstone  to  have 
been  used  time  out  of  mind  and  to  have  been  co-eval  with 
the  first  civil  government  thereof,  but  likewise  among  all 
the  northern  nations  of  Europe. 

In  England,  the  jury  anciently  consisted  of  persons 
W' ho  were  witnesses  to  the  facts,  or  at  least  in  some  meas- 
ure personally  cognizant  of  them,  and  who,  consequently, 
in  their  verdict,  gave  not  (as  now)  the  conclusion  of  their 
judgment  upon  facts  proved  before  them  in  the  cause, 
but  their  testimony  as  to  facts  which  they  had  anteced- 
ently known.  The  venire  facias,  or  writ  by  which  the 
sheriff  was  commanded  to  summon  the  jury  for  the  trial 
of  a  cause,  in  those  days  directed  the  jurors  to  be  sum- 
moned, not  from  the  body  of  the  county,  but  from  the 
immediate  neighborhood  where  the  facts  occurred,  and 
from  among  those  persons  who  best  knew  the  truth  of  the 
matter.  Such  neighborhood  was  called  the  ''venue"  or 
"visne,"  and  was  required  to  be  stated  in  the  pleadings, 
so  that,  the  substance  of  the  issue  being  set  forth  in  the 

8  Jnd.    Act,   ch.    18,    §  12 ;    Comp.  9  People     v.     Judge     of     Superior 

Laws  1915,  §  12584.  Court,  41  Mich.  31. 


§  5  Jury  1007 

venire  facias,  it  might  be  known  from  what  place  to 
summon  the  jury.^° 

But  in  time  the  practice  relative  to  the  summoning  of 
juries  underwent  very  radical  changes,  as  the  result  of 
which  it  came  about  that  the  jury,  instead  of  being  sum- 
moned as  witnesses  or  on  account  of  l)eing  personally 
cognizant  of  the  facts  pertaining  to  the  issue,  were 
thenceforth  summoned  as  judges  of  the  issue,  receiving 
the  facts  from  the  testimony  of  others  judicially  exam- 
ined before  them,  and,  instead  of  being  summoned  from 
the  place  where  the  facts  of  the  issue  occurred,  w^ere 
summoned  from  the  body  of  the  county  where  the  action 
was  laid.^^ 

At  common  law,  the  jury  consisted  of  twelve  good  and 
lawful  men.^^  Neither  a  larger  nor  a  smaller  number 
was  competent,"  and  they  must  be  liege  subjects  of  the 
king,  and  neither  aliens  nor  persons  outlawed,  attained 
of  any  treason  or  felony  or  convicted  of  any  species  of 
crimen  falsi,  as  conspiracy  or  perjury,  which  would 
render  them  infamous.^*  The  jury  was  intended  to  be 
composed  of  twelve  intelligent  and  impartial  men,  ''by 
whom, ' '  in  the  quaint  language  of  the  venire  facias,  ' '  the 
truth  of  the  matter  might  be  better  known."" 

§  5.  Right  to  jury  as  preserved  by  constitution. 

By  the  constitution  of  Michigan,  it  is  provided  that  the 
right  of  trial  by  jury  shall  remain."    The  right  thus  pre- 

lOSteph.     PI.     268;      Coiivcrs     v.  14  People  v.  Harding,  53  Mich.  48. 

Grand  Eapids,  etc.,  E.  Co.,  18  Mich.  15  .3  Cooley  's  Bl.  Comm.  352. 

459;    Swart    v.    Kimball,    43    Mich.  16  Const.   Art.  II,  sec.   13;    In   re 

443;  People  v.  Hall,  48  Mich.  482;  Shepard,  109  Mich.  631.;    Young  v. 

People  V.  Harding,  53   Mich.  48.  Peters,    118    Mich.    45;    Wixom    v. 

llSteph.  PI.  271-273.  Bixby,   127   Mich.   479;    Rhoades   v. 

12  Steph.  PI.  273.  McNamara,   135  Mich.   644;    People 

13  Thomp.  Trials,  sec.  3 ;  People  v.  Doesburg,  16  Mich.  133 ;  Ball  v. 
V.  Luby,  56  Mich.  551;  People  v.  Eidge  Copper  Co.,  118  Mich.  7;  In 
Lane,    124   Mich.   271;    Eobinson   v.  re  Cox,  129  Mich.  635. 

Wayne    Circuit    Judges,    151    Mich.  If  only  question  of  law  involved, 

315,  it  seems  that  the  judge  may  dismiss 


1008  Jury  §  5 

served  and  guaranteed  is  the  right  as  it  existed  before, — 
the  right  to  a  trial  by  jury  as  it  had  become  known  to  the 
previous  jurisprudence  of  the  state;  ^"^  and  while  it  was 
not  intended  to  limit  the  power  of  the  legislature  there- 
after to  change  the  law  relative  to  the  qualifications  of 
jurors  or  to  the  manner  of  selecting  jurors  or  to  the  per- 
sons or  officers  who  should  make  the  selections  or  the 
lists  from  which  the  selections  should  be  made,"  yet  the 
essentials  of  the  right  cannot  be  taken  away. 

§  6.  Qualifications  of  jurors. 

It  is  provided  by  statute  in  this  state  that  persons 
selected  to  serve  as  jurors  shall  be  suitable  persons,  being 
citizens  having  the  qualifications  of  electors.  They  must 
be  persons  who  are  in  the  possession  of  their  natural 
faculties,  and  not  infirm  or  decrepit,  of  good  character, 
of  approved  integrity,  of  sound  judgment,  well  inforaied 
and  conversant  with  the  English  language,  free  from  all 
legal  exceptions,  and  who  have  not  made  and  in  whose 
behalf  there  has  not  been  made  any  application  to  be 
selected  and  returned  as  jurors." 

the  jury.  Fleming  v.  James  S.  Court  Judge,  ,88  Mieh.  438;  People 
Holden  Co.,  200  Mich.  519.  v.   Eeilly,   53   Mieh.   260;    People   v. 

17  Underwood  v.  People,  32  Mich.       Cummins,  47  Mieh.  334. 

1 ;  Swart  v.  Kimball,  43  Mich.  443 ;  19  Jud.   Act,   ch.   2,   §  121 ;    Comp. 

State   V.   Iron    Cliffs  Co.,   54   Mich.  Laws  1915,  §12190;  People  v.  Con- 

350;   Auditor  General  v.  Sloman,  84  sidine,    105    Mich.    149;     People    v. 

Mich.  118;   Campau  v.  City  of  De-  Scott,  56  Mich.  154. 

troit,    14    Mich.    276;     Johnson    v.  Electors   are   competent   jurors   in 

Maxon,    23    Mich.    129;    McEae    v.  actions   in   which   their  county,   city 

Grand  Eapids,  etc.,  E.  Co.,  93  Mich.  or  village  is  interested.     Jud.  Act, 

399.  ch.    18,     §27;     Comp.    Laws    1915, 

The  right  to  jury  trial  need  not  §  12599. 

be    extended    to    new    cases.      State  Jurors  must  be  electors.     People 

Tax  Law  Cases,  54  Mich.  350.  v.  Harding,  53  Mich.  48. 

18  People  V.  Harding,  53  Mich.  They  must  be  on  the  assessment 
48;  City  of  Saginaw  v.  Campau,  102  roll.  Schlacker  v.  Ashland  Iron  Min. 
Mich.  594;  People  v.  Bichards,  38  Co.,  89  Mieh.  253;  People  v. 
Mich.  214;  Bisser  v.  Hoyt,  53  Mich.  Thacker,  108  Mich.  652.  But  see 
185;  People  v.  Anderson,  53  Mich.  Eeed  v.  Peacock,  123  Mich.  444. 
60;   Hall  v.  Grand  Eapids  Superior  They   must  reside  in  the  county. 


§  7  Jury  1009 

Under  the  general  law  relative  to  the  selection  of 
persons  to  serve  as  jurors,  the  lists  are  required  to  be 
made  up  of  the  names  of  persons  assessed  on  the  assess- 
ment rolls  of  the  various  townships,  wards  and  assess- 
ment districts  for  the  same  year.*^®  The  selection  of 
jurors  in  the  Upper  Peninsula  is  governed  by  a  special 
law,  under  which  the  lists  are  to  be  made  up  of  selections 
from  the  various  poll  lists  of  each  township  and  ward 
last  filed  in  the  clerk's  office.^^  The  burden  of  showing 
disqualification  of  a  juror  is  upon  the  party  alleging  it." 

§  7.  Exemptions  from  service  as  juror  and  excusing 
jurors. 

The  following  persons  are  by  statute  exempt  from  serv- 
ing as  jurors: 

All  officers  and  employes  of  the  United  States,  all  offi- 
cers and  employes  of  this  state,  all  county  officers  and 
their  deputies,  all  judges  of  courts  of  record,  all  attomej^s 
and  counselors,  all  officers  and  teachers  of  colleges  and 
incorporated  academies,  all  settled  ministers  of  the  gos- 
pel, all  superintendents,  engineers  and  conductors  of  any 

Hewitt    V.    Saginaw    Circuit    Judge,  majority   of   the   persons   summoned 

71  Mich.  287;  People  v.  Wright,  89  were  eligible.     Niles  v.  Steere,  102 

Mich.  70.  Mich.  328. 

An  alien  is  not  eligible  (People  v.  It  is  no  ground  for  challenge  to 

Barker,  60  Mich.  277),  unless  he  has  the   array   that   the   jury   lists   were 

taken  the  necessary  steps  to  entitle  not    returned    until    after    the    time 

him    to    vote.      Neal    v.    Neal,    181  fixed  by  the  statute.    People  v.  Coff- 

Mich.  114,  129;  People  v.  Considine,  man,  59  Mich.  1;  Thomas  v.  People, 

105  Mich.  149;  People  v.  Barker,  60  39  Mich.  309. 

Mich.    277;    People    v.    Collins,    166  21  How.    Stat.    (2nd    ed.)    12917; 

Mich.  4.  Comp.  Laws  1915,  §  14598. 

20Jud.    Act,    ch.    2,    §§120,    121;  One   of  the  main  objects  of  any 

Comp.  Laws  1915,   §§12189,  12190;  system    for   selecting  jurors   is   that 

Schlacker  v.  Ashland  Iron  Min.  Co.,  the  panel  shall  come  from  the  body 

89    Mich.    253;    People    v.    Thacker,  of    the     county,    and     this     intends 

108  Mich.  652.  every      townsliip      in      the      county. 

A  challenge  to  the  array  on  the  Hewitt    v.    Saginaw    Circuit   Judge, 

ground  that  the  assessment  rolls  for  71  Mich.  287. 

the    wrong   year    were    used    cannot  22  People  v.  Collins,  166  Mich.  49. 
be    sustained,    it    appearing    that    a 
1   Abbott— 64 


1010  Jury  §  7 

railroad,  all  constant  ferrymen,  all  members  of  any 
legally  organized  fire  department,  all  members  of  the 
Michigan  national  guard,  all  registered  pharmacists,  all 
practicing  physicians,  surgeons  and  dentists,  and  all  per- 
sons more  than  sixty-five  years  of  age.'^'  Keepers  of  poor 
houses  also  are  exempt  from  serving  on  juries.^* 

The  court  to  which  any  person  is  returned  as  a  juror 
is  required  to  excuse  him  from  serving  at  such  court 
whenever  it  appears  (1)  that  he  is  exempt  from  serving 
on  juries  by  the  provisions  of  law,  (2)  that  he  is  a  justice 
of  the  peace  or  executes  any  other  civil  office  the  duties 
of  which  are  at  the  time  inconsistent  with  his  attend- 
ance as  a  juror,  (3)  that  he  is  a  teacher  of  any  school, 
actually  employed  and  serving  as  such,  or  (4)  when,  for 
any  other  reason,  the  interests  of  the  public  or  of  the  in- 
dividual juror  will  be  materially  injured  by  such  attend- 
ance, or  his  own  health  or  that  of  any  member  of  his 
family  requires  his  absence  from  such  court.^* 

While  the  judge  is  vested  with  no  right  of  peremptory 
challenge,^^  he  may,  on  his  own  motion,  before  a  juror 
has  been  sworn  in  a  case,  excuse  him  for  any  reason  per- 
sonal to  the  juror  which  seems  to  the  judge  sufficient,*''^ 
even  in  the  absence  of  counsel  for  one  of  the  parties,*' 
especially  where  the  regular  panel  has  not  been  ex- 
hausted and  the  objecting  party  has  not  exhausted  his 
peremptorj^  challenges.*^  But  a  judge  has  no  right  to 
reject  a  qualified  juror  with  whom  the  parties  are  satis- 
fied, unless  for  sufficient  cause,  and  such  cause  should 

28Jud.   Act,  ch.   2,   §138;  Conip.      Mich.    36;     People    v.    Carrier,    46 

Laws  1915,  §  12207.  Mich.    442 ;    Torrent    v.    Yager,    52 

24  How.    Stat.     (2nd    ed.)  3511;       Mich.    506;    People    v.    Barker,    60 

Comp.  Laws  1915,  §  5224.  Mich.  277;  O'Neill  v.  Lake  Superior 

25Jud.   Act,   ch.   2,   §139;    Comp.       Iron  Co.,  67  Mich.  560. 

Laws  1915,  §  12208.  28  People    v.    Thacker,    108    Mich. 

26  Welch  V.  Tribune  Pub.  Co.,  §3       652. 

Mich.  661.  29Brennan  v.  O'Brien,  121  Mich. 

27  Atlas  Min.  Co.  v.  Johnston,  23      491 ;  Luebe  v.  Thorpe,  94  Mich.  268. 


§  9  Jury  1011 

appear  upon  the  record.*''  Even  after  the  jury  has  been 
sworn,  the  trial  judge  may  exercise  his  discretion  to  ex- 
cuse a  juror  for  cause  before  the  introduction  of  evi- 
dence.*^ 

§  8.  Exemption  not  disqualification. 

A  person  who  is  exempt  from  serving  as  a  juror  is  not 
thereby  disqualified  for  such  service.  The  right  to  claim 
the  exemption  is  personal  to  the  juror  and  is  not  a  ground 
for  a  challenge  for  cause.  Thus,  a  man  over  sixty-five 
years  of  age  is  exempt  from  jury  service,  but  he  is  not, 
for  that  reason,  subject  to  challenge  for  cause.*'^ 

§  9.  Drawing"  and  summoning'  of  jurors. 

After  giving  notice  to  the  sheritf  and  two  justices  of 
the  peace,  at  least  three  days  before  the  drawing,  of  the 
day  and  hour  when  the  drawing  will  take  place,  and  at 
least  fourteen  days  before  the  holding  of  any  circuit 
court  at  which  a  juiy  is  required,  the  clerk  of  the  county 
where  the  court  is  to  be  held  is  required  to  draw  from 
the  petit  jurors  in  the  manner  prescribed  by  the  statute, 
the  names  of  twenty-four  persons  and  any  additional 
number  that  may  have  been  ordered  by  the  court  to  serve 
as  petit  jurors,  and,  when  the  drawing  is  completed,  to 
make  and  deliver  to  the  sheriff  a  list  of  the  persons  so 
drawn,  with  their  places  of  residence,  specifying  for 
what  term  of  court  they  were  drawn,  certified  by  the  clerk 
and  the  officers  attending  the  drawing.**    Thereupon  the 

80  Welch  V.  Tribune  Pub.  Co.,  83  there  is  no  good  reason  for  excusing 

Mich.  661.  him.    Brennan  v.  O'Brien,  121  Mich. 

Except  where  it  will  prejudice  the  491 ;    Welch    v.    Tribune    Pub.    Co., 

rights  of  a  party,  as  where  the  reg-  8o  Mich.  661. 

ular   panel   has   been   exhausted,   or  31  Quay    v.    Duluth,    etc.,   E.    Co., 

the  peremptory  challenges  have  been  153  Mich.  567, 

exhausted,  it  is  not  reversible  error  32  People  v.  Rawn,  90  Mich.  377 ; 

for  the  court  to  excuse  a  juror  on  Luebe    v.    Thorpe,    94    Mich.    268; 

his    voir    dire    at    his    own    request  People   v.   Lange,   90   Mich.   454. 

although  he  is  qualified  to  sit  and  33  Jud.  Act,  ch.  2,  §§130-135,  143, 


1012  Jury  §  9 

sheriff  is  required  to  serve  a  personal  notice  upon  each 
of  the  persons  summoned  to  serve  as  petit  jurors  by  mak- 
ing out  a  written  notice  to  each  person  summoned  and 
enckising  it  in  a  sealed  envelope  addressed  to  the  person 
so  summoned  at  his  last  known  place  of  residence  and 
sending  it  to  him  by  registered  mail  at  least  ten  days 
before  the  first  day  of  the  next  term  of  the  court,  with 
a  demand  on  the  envelope  for  a  return  registry  receipt. 
The  sheriff  must  make  a  proper  return  to  the  court  speci- 
fying who  have  been  summoned  and  the  manner  in  which 
such  service  was  made,  attaching  to  the  return  the  reg- 
istry receipts  received  from  the  persons  so  summoned.^* 
The  body  of  persons  so  summoned  to  serve  as  jurors  is 
called  the  ''panel,"  a  word  which  was  formerly  used  to 
designate  the  little  pane  or  oblong  piece  of  parchment 
upon  which,  annexed  to  the  venire  facias,  the  sheriff  used 
anciently  to  return  the  names  of  the  jurors.^' 

§  10.  Additional  jurors. 

Whenever,  for  any  cause,  jurors  have  not  been  drawn 
and  summoned,  or  a  sufficient  number  of  qualified  jurors 
fail  to  appear,  the  court  may,  in  its  discretion  and  on  its 
own  motion,^®  in  such  manner  as  it  may  direct,  order  a 
sufficient  number  to  be  drawn  and  summoned  to  attend 
the  court,  and  may,  for  the  purpose  of  obtaining  a  jury 
or  talesmen  near  the  county  seat,  direct  from  which 
townships  or  supervisor  districts  or  voting  precincts  such 
jurors  shall  be  drawn."    And  the  sheriff,  upon  receiving 

144;    Comp.    Laws    1915,    §§12199-  34Jud.    Ad,   ch.   2,    §136;    Comp. 

12204,  12212,  12213.     See  also  Jud.  Laws  1915,  §  12205. 

Act,  ch.  2,  §§150-159;   Comp.  Laws  35  3  Cooley's  Bl.  Comm.  353;  And. 

1915,  §§  12219-12228,  as  to  the  adop-  Law  Diet.  tit.  "Panel";   Cyc.  Law 

tion  by  vote  of  the  electors  of  the  Diet.   tit.    ' '  Panel. ' ' 

method      of      drawing      jurors      by  36  Smaltz     v.     Boyce,     109     Mich. 

Boards   of  Jury   Commissioners.     A  382;  People  v.  Considine,  105  Mich. 

jury    may    be    drawn    by    a    deputy  149. 

sheriff.       Sturgis     v.     Mt.     Clemens  37  Jud.    Act,   ch.   2,   §145;    Comp. 

Sugar  Co.,  184  Mich.  456.  Laws  1915,  §  12214;  Niles  v.  Steere, 


§  11  Jury  1013 

the  list  of  jurors  drawn  according  to  such  order,  is  re- 
quired to  summon  them  in  tlie  manner  already  specified 
forthwith  to  attend  such  court.'* 

§  11.  Drawing  and  calling  jurors  for  trial  of  an  issue. 

On  the  return  of  every  list  of  petit  jurors  summoned 
by  the  sheriff  to  attend  any  circuit  court,  the  clerk  of  the 
court  is  required  by  the  statute  to  cause  the  names  of  the 
several  persons  so  returned,  and  who  are  not  discharged 
or  excused  by  the  court,  to  be  written  on  several  and  dis- 
tinct pieces  of  paper  and  to  roll  or  fold  such  pieces  of 
paper  each  in  the  same  manner,  as  near  as  may  be,  so  as 
to  resemble  each  other  as  much  as  possible  and  so  that 
the  name  written  thereon  will  be  concealed.'®  These 
pieces  of  paper  must  then  be  deposited  in  a  sufficient  box, 
from  which  they  may  be  drawn  when  a  jury  is  to  be  im- 
paneled for  the  trial  of  a  cause.*"  When  an  issue  is 
brought  on  for  trial,  the  clerk  of  the  court,  under  its 
direction,  openly  draws  out  of  the  box  as  many  of  these 
ballots,  one  after  another,  as  is  sufficient  to  form  a  jury.*^ 
Before  any  jury  is  drawn,  the  box  containing  the  ballots 
must  be  closed  and  be  well  shaken,  so  as  to  intermingle 
the  ballots.  The  clerk  then  draws  the  ballots,  without 
seeing  the  names  written  on  them,  through  a  hole  in  the 
top  or  lid  of  the  box,  which  should  be  so  large  only  as 
conveniently  to  admit  his  hand.**^  The  first  twelve  per- 
sons who  appear  as  their  names  are  drawn  and  called, 
and  who  are  approved  as  impartial  between  the  parties, 


102  Mich.  328;   People  v.  Gage,  188  39  Jud.   Act,   eh.   18,    §28 

Mich.     635,     holding     order     cannot  Laws  1915,  §  12600. 

designate    portion    of    county    from  40  Jud.   Act,   ch.   18,    §29 

which    the    jurors    shall    be    drawn;  Laws  1915,  §12601. 

People   V.   Wheeler,   142    Mich.    212.  41Jud,   Act,   eh.    18,   §30 

See  Green  v.  Muskegon  T.  &  L.  Co.,  Laws  1915,  §  12602. 

171  Mich.  18,  construing  Pub.  Acts  42  Jud.   Act,   ch.    18,    §36 

1911,  No.  194.                      "  Laws  1915,  §12608. 

38  Jud.   Act,   ch.   2,    §136;    Comp. 
Laws  1915,  §12205. 


Comp. 
Comp. 
Comp. 
Comp. 


1014  Jury  §  11 

are  thereupon  sworn  and  constitute  the  jury  to  try  the 
cause." 

§  12.  When  talesmen  may  be  summoned. 

If,  by  reason  of  there  being  one  or  more  juries  im- 
paneled or  for  any  other  reason,  there  remain  no  ballots 
undrawn  from  the  box,  or  if,  in  consequence  of  jurors 
being  set  aside,  no  jury  can  be  obtained  from  the  list  of 
those  returned  by  the  sheriff  for  the  trial  of  an  issue,  the 
court  may,  as  in  other  cases,  order  the  sheriff  or,  if  he  be 
a  party  or  interested  in  the  cause,  some  other  person,  to 
be  appointed  by  the  court,  to  summon  jurors  from  the  by- 
standers or  other  persons,  who,  having  been  returned  and 
sworn,  will  be  a  competent  jury  for  the  trial  of  the  issue, 
notwithstanding  there  may  be  none  of  the  panel  of  jurors 
returned  by  the  sheriff  upon  such  jury.**  Persons  thus 
summoned  are  called  ''talesmen,"  from  the  Latin  word, 
"talis,"  meaning  "such,"  for  under  the  old  common  law 
practice,  when,  by  reason  of  challenges  or  other  cause,  a 
sufficient  number  of  unexceptionable  jurors  did  not  ap- 
pear, either  party  might  pray  a  "tales,"  that  is,  a  supply 
of  "such"  men  as  were  summoned  upon  the  first  panel, 
in  order  to  make  up  the  deficiency. 

§  13.  Number  of  jurors. 

As  at  common  law,  the  jury  consists  of  twelve.  But 
the  legislature  may  authorize  a  trial  by  a  jury  of  a  less 
number  than  twelve  men." 

43  Jud.  Act,  eh.  18,  §  31 ;  Comp.  county,  where  there  is  no  objec- 
Laws  1915,  §  12603,  tion.     People  v.  Wheeler,  142  Mich. 

44  Jud.   Act,  eh.   18,   §35;    Comp.      212. 

Laws  1915,  §  12607.     It  is  error  to  In  the  absence  of  the  sheriff,  the 

excuse    a    talisman    on    the    ground  underslieriff  is  the  proper  officer  for 

that  he  was  not  a  taxpayer.     Reed  the   court  to   call  upon   to   summon 

V.  Peacock,  123  Mich.  244;  Stewart  talismen.     People   v.   Ponsford,   181 

V.  People,  23  Mich.  63.  Mich.  659,  665. 

This    statute    is    not    mandatory.  Interest  of  sheriff  as  incapaeitat- 

and  instead  the  sheriff  may  be  di-  ing  him  to   act,  see  People  v.   La- 

rected  to  summon  persons  as  jurors  Londe,   171  Mich.  286. 

from    designated    townships    of    the  45  Const.    Art.    V,    sec.    27.      But 


§  16  Jury  1015 

§  14.  Administering  oath  to  jury. 

The  jury  must  be  sworn.**^  The  sufficiency  of  the  oath 
administered  is  waived  by  going  to  trial.*' 

§  15.  Challenges  of  jury  or  jurors. 

The  principal  means  whereby  a  jury  ''approved  as 
impartial  between  the  parties"  is  secured  for  the  trial 
of  an  issue  of  fact  is  the  exercise  of  the  right  to  chal- 
lenge. Challenges  are  classified  as  either  (1)  "to  the 
array"  or  (2)  "to  the  polls." 

§  16.  Challenges  to  the  array. 

A  challenge  to  the  array  is  an  exception  to  the  whole 
panel  in  which  the  jurors  are  arrayed  or  set  in  order  by 
the  sheriff  on  his  return,  and  is  founded  upon  some  ob- 
jection whicli,  if  valid,  vitiates  the  whole  panel  and  neces- 
sitates its  discharge.*^  At  the  common  law,  a  challenge 
to  the  array  might  be  made  upon  account  of  some  par- 
tiality or  default  in  the  sheriff  or  under  sheriff  who 
arrayed  the  panel,  and  now  such  a  challenge  will  prob- 
ably lie  to  the  action  of  a  board  of  jury  commissioners 
where  it  would  at  common  law  to  the  action  of  the  sher- 
iff or  his  subordinate  officers.*®  But  it  is  not  a  cause  of 
challenge  to  any  panel  or  array  of  jurors  in  any  cause 
that  the  clerk  of  the  county  who  drew  them  was  a  party 

legislature  cannot  provide   for  con-  It  is  not  a  ground  that  the  dep- 

tingencies  in  which  a  jury  may  con-  uty    sheriff    instead    of    the    sheriff 

sist  of  less  than  twelve,  in  the  dis-  acted  in  drawing  the  jury.     Sturgis 

cretion   of  the  trial  court.     McRae  v.  Mt.  Clemens  Sugar  Co.,  184  Mich. 

V.   Grand   Rapids,   L.   &  D,  R.   Co.,  456. 

93  Mich.  399.  Grounds  in  general,  see  People  v. 

46  See  Peninsular  Stove  Co.  v.  Os-  Tonnelier,  167  Mich.  638,  and  cases 
mun,  73  Mich.  570.  cited. 

47  The  Milwaukee,  1  Doug.  306.  49  People  v.  Harding,  53  Mich.  49 ; 

48  3     Cooley's     Bl.     Comm.     359.  3  Cooley's  Bl.  Comm.  359;   Gott  v. 
Grounds     in     particular     cases,     see  Brigham,    45    Mich.    424;    Free!    v. 
Eberts  v.  Mount  Clemens  Sugar  Co.,  State,  21  Ark.  212;  Gardner  v.  Tur- 
182    Mich.     449;     People    v.    Mac-  ncr,  9  Johns.  (N.  Y.)  260, 
Gregor,  178  Mich.  436,  464. 


1016  Jury  §  16 

or  interested  in  the  case  or  was  counsel  for  or  related  to 
either  partj'  therein.^"  It  also  is  not  a  good  ground  for 
such  challenge,  where  the  jurors  have  been  drawn  as 
provided  by  law,  that  they  were  summoned  by  a  sheriff 
who  was  a  party  or  interested  in  the  cause  or  is  related 
to  either  party,  unless  it  be  alleged  in  the  challenge  and 
be  satisfactorily  shown  that  some  of  the  jurors  drawn 
by  the  clerk  were  not  summoned  and  that  such  omission 
was  intentional.^^  Nor  can  a  challenge  to  the  array  be 
sustained  on  the  ground  that,  in  making  uj)  the  list  of 
jurors,  the  board  used  the  assessment  rolls  for  the  wrong 
year,  where  a  majority  of  the  persons  selected  were 
eligible,  since  the  statute  points  out  the  procedure  when, 
from  any  cause,  a  sufficient  number  of  qualified  jurors 
do  not  attend.*^ 

Challenges  to  the  array  should  be  in  writing,^'  made 
before  the  jury  is  sworn,"  and  must  be  supported  by 
proof  of  the  irregularity  charged.®^ 

(Title  of  court  and  cause.) 

Come  now  as  well  the  said  plaintiff  as  the  said  defendant,  by  their 
respective  attorneys,  and  the  jurors  of  the  jury  impaneled  in  this  cause 
also  come;  and  hereupon  the  said  plaintiff  challenges  the  array  of  said 
panel,  because,  he  says  (here  specify  the  grounds  of  challenge),  and  this 
the  said  plaintiff  is  ready  to  verify,  and  prays  judgment,  and  that  the  said 
panel  may  be  quashed. 


Dated,  etc. 


J.  K., 

Attorney  for  Plaintiff. 


SOJud.   Act,  ch.   18,   §24;    Comp.  53  People    v.    Doe,    1    Mich.    451; 

Laws  1915,  §12596;  People  v.  Pel-  Eyder    v.    People,    38    Mich.    269; 

ker,  61  Mich.  114;  Fornia  v.  Wayne  People  v.  Tubbs,  147  Mich.  1. 

Circuit  Judge,  140  Mich.  631.  54  People  v.  McArron,  121  Mich.  1, 

51Jud.   Act,   ch.   18,    §2.1;    Comp.  56  People    v.    Coughlin,    67    Mich. 

Laws  191.5,  §  12.597;  People  V.  Sum-  466;    Smaltz    v.    Boyce,    109    Mich, 

mers,  115  Mich.  537.  382;  Barrelli  v.  People,  164  111.  549; 

62Niles  v.  Steere,  102  Mich.  328;  State  v.  Rigg,  10  Nev.  284. 
Eberts   v.   Mt.    Clemens   Sugar   Co., 
182  Mich.  449. 


§  17  Jury  1017 

§  17.  Challenges  to  the  polls Peremptory  challenges. 

Challenges  to  the  polls  are  exceptions  to  particular 
jurors,  and  are  either  (1)  * ' peremptoiy "  or  (2)  "for 
cause."  A  peremptory  challenge  is  one  for  which  no 
reason  need  be  given.*^  By  the  terms  of  the  statute  in 
Michigan,  in  civil  cases,  each  party  may  challenge  per- 
emptorily four  jurors.^'  Peremptory  challenges  are 
given  in  civil  cases  by  the  statute  ex  gratia.  A  party  is 
not  entitled  to  them  independently  of  the  statute  as  a 
matter  of  right.  They  are  not  aimed  at  disqualifications, 
but  are  permitted  to  be  exercised  upon  jurors,  whether 
qualified  or  not,  as  a  matter  of  favor  to  the  challenger.*^* 

It  is  the  general  rule  that,  where  several  persons  are 
joined  as  plaintiffs  or  defendants,  the  number  of  per- 
emptory challenges  is  restricted  to  each  aggregate  party 
considered  as  a  unit,  that  is  to  say,  all  the  parties,  plain- 
tiff or  defendant,  must  join  in  their  peremptory  chal- 
lenges.^^ But,  in  Michigan,  where  several  defendants 
each  plead  separately  by  different  counsel  or  their  in- 
terests are  several,  the  right  of  separate  challenge  is  al- 
lowed to  each  defendant.^"  Where,  however,  parties  im- 
pleaded together  appear  by  the  same  counsel,  and,  after 
their  right  of  peremptory  challenge  is  exhausted,  other 
counsel  take  charge  of  the  case  for  a  part  of  them,  the 
latter  have  no  further  right  of  challenge.^^    The  right  to 

66  0 'Neil   v.    Lake    Superior   Iron  60  Stroh    v.    Hinchman,    37    Mich. 

Co.,  67  Mich.  560;  People  v.  Eggle-  490;    People   v.   Welnier,   110   Mich, 

ston,    186    Mich.    510;    Donovan    v.  248;    Levyn    v.    Koppin,    183    Mich. 

People,  139  111.  412;   Hayes  v.  Mis-  232;    Yonkus  v.   McKay,   186  Mich, 

souri,  120  U.  S.  71.  203. 

67Jud.   Act,  eh,   18,   §40;    Conip.  Rule    applied    where    action    for 

Laws   1915,   §  12612,  damages  is  brought  against  saloon- 

68  0 'Neil   v.    Lake    Superior   Iron  keeper   and    his   surety.     Yonkus   v. 

Co.,  67  Mich.  560;  People  v.  Eggle-  McKay,   186  Mich,   203. 

ston,  186  Mich,  510,  61  Fraser    v.    Jennison,    42    Mich. 

59  1  Thonip.  Trials,  see.  46;  Stone  206.     To  same  effect,  in   will  case, 

V.    Segur,    11    Allen     (Mass.)     568;  see  In  re  Walsh's  Estate,  196  Mich. 

Snodgrass  v.  Hunt,  15  Ind,  274,  42,  66. 


1018  Jury  §  17 

challenge  peremptorily  may  be  exercised  at  any  time  be- 
fore the  juror  is  sworn,^^  but  not  afterwards.®* 

§  18.  Challenges  for  cause. 

Challenges  for  cause  are,  as  the  name  implies,  such  as 
require  a  reason  to  be  assigned  for  them.  The  cause  must 
be  immediately  assigned,  and  the  truth  thereof  must  be 
determined  by  the  court.®*  It  is  not  necessary  that  there 
should  be  any  statutory  provision  that  challenges  for 
cause  may  be  allowed.  The  right  exists  in  all  cases  where 
the  jury  impaneled  is  a  common  law  jury.  Indeed,  a 
party  cannot  be  deprived  of  it  by  statute.®^ 

Sir  Edward  Coke  reduced  challenges  to  the  polls  for 
cause  to  four  heads,  namely:  (1)  I^ropter  honoris  respec- 
tum,  as,  if  a  lord  of  parliament  be  impaneled  on  a  jury, 
he  might  be  challenged  by  either  party;  (2)  Propter 
defectum,  as,  if  a  juryman  be  an  alien  born,  this  was  de- 
fect of  birth ;  if  he  be  a  slave  or  bondman,  this  was  defect 
of  liberty,  and  he  could  not  be  liber  et  legalis  homo;  (3) 
Propter  affectum,  for  suspicion  of  bias  or  partiality.  The 
challenge  propter  affectum  may  be  either  a  principal  chal- 
lenge or  to  the  favor.  A  principal  challenge  is  one  the 
cause  assigned  for  which  carries  with  it  prima  facie  evi- 
dent marks  of  suspicion  either  of  malice  or  favor,  as  that 
a  juror  is  of  kin  to  either  party  within  the  ninth  degree  or 

62  Hunter    v.    Parsons,    22    Mieh.  People  v.   MeArron,  121  Mich.   1. 
96;  People  v.  Carrier,  46  Mieh.  442;  Fact    not    discovered    until    after 
Hamper's     Appeal,     51     Mich.     71;  judgment  cannot  be  relied  on.    Neal 
Palmer  v.  Highway  Com'r,  49  Mich.  v.  Neal,  181  Mich.  114. 

45;   Scripps  v.  Eeilly,  38  Mich.  10;  Challenges  for  c£>use  may  be  made 

Jhons  V.  People,  25  Mich.  499;  Johr  at  any  time  before  the  jury  is  sworn 

V.  People,  26  Mich.  427.  (Scripps    v.    Eeilly,    38    Mieh.    10), 

63  People  v.  Dolan,  51  Mich.  610;  but  not  afterwards.  Clark  v.  Drain 
Thorp  V.  Deming,  78  Mich.  124;  Com'rs,  50  Mich.  618;  The  Mil- 
Ayres  v.  Hubbard,  88  Mich.  155.  waukie,  1  Doug.  306;  Johr  v.  People, 

64Jud.   Act,  ch.   18,   §40;    Comp.  26    Mich.    427;    Walker    v.    City    of 

Laws  191.5,  §12612;  Holt  v.  People,  Ann  Arbor,  111  Mich.  1. 

13    Mich.    224;     The    Milwaukie,    1  65  Kundinger  v.  City  of  Saginaw, 

Doug.  306;   People  v.  Doe,  1  Mieh.  59  Midi.   355. 
451;   Johr  v.  People,  26  Mich.  427; 


§  18  Jury  1019 

that  he  has  an  interest  in  the  cause.  Challenges  to  the 
favor  are  where  the  party  has  no  principal  challenge,  but 
objects  only  on  some  probable  circumstance  of  suspicion, 
as  acquaintance  and  the  like,^^  (4)  Propter  delictum,  for 
some  crime  or  misdemeanor  that  affected  the  juror's 
credit  and  rendered  him  infamous.®''^ 

In  modern  practice,  challenges  for  cause  may  well 
be  classified  as  (1)  those  wherein  the  cause  assigned  af- 
fects the  general  qualification  of  the  person  to  serve  as  a 
juror  in  the  trial  of  any  issue  at  the  term  of  court  for 
which  he  was  summoned,  as,  that  he  is  not  in  the  posses- 
sion of  his  natural  faculties  or  is  not  conversant  with  the 
English  language ;^^  (2)  those  where  the  cause  assigned 
affects  not  necessarily  his  general  qualification  as  a  juror, 
but  only  his  qualification  to  sit  as  a  juror  in  the  particu- 
lar case,  as,  that  he  is  interested  in  the  outcome  of  the 
trial  or  is  of  kin  to  one  of  the  parties  within  the  degree 
limited  by  law  ®^  or  has  a  fixed  and  positive  belief  upon 
the  truth  or  propriety  of  the  issue.''" 

It  is  a  ground  for  challenge  for  cause  that  the  person 

66  The  provision  of  the  statute  v.  German  Ins.  Co.,  107  Mieh.  270 ; 
that,  in  all  cases  of  challenges  for  City  of  Detroit  v.  Detroit  Ey.,  134 
cause,  the  cause  shall  be  immediately  Mich.  11;  People  v.  Waller,  70  Mich, 
assigned  and  the  truth  thereof  shall  2.37;  Goodrich  v.  Burdick,  26  Mich, 
be  determined  by  the  court,  practi-  39;  Pearce  v.  Quincy  Min.  Co.,  149 
cally    abolishes    the    distinction    be-  Mich.  112. 

tween  challenges  for  principal  cause  70  Blake    v.   Millspaugh,    1   Johns, 

and   challenges  to  the   favor.      Holt  (N.    Y.)    316;    Pringle    v.    Hu.se,    1 

V.   People,   13   Mich.   224;    Stephens  Cow.    (N.  Y.)    432;    People  v.   Shu- 

v.   People,    38    Mich.    739;    Bliss   v.  felt,  61   Mich.  237;   People  v.  Bar- 

Caille  Bros.  Co.,  149  Mich.  601.  ker,  60  Mich.  277;  Rice  v.  Rice,  104 

67  3   Cooley's  Bl.  Comm.  361-363.  Mich.   371;    People  v.   O'Neill,   107 

68  State  V.  Gay,  25  La.  Ann.  472;  Mich.  556;  Pearson  v.  Schocnburg, 
Garcia  v.  State,  12  Tex.  App.   335.  167  Mich.  255. 

69  Stevenson  v.  Stiles,  3  N.  J.  L.  A  juror  may,  it  seems,  be  asked 
310;  Peklenk  v.  Isle  Royalo  Copper  which  party  he  would  favor  if  the 
Co.,  187  Mich.  644;  Michigan  Air  testimony  were  evenly  balanced. 
Line  R.  Co.  v.  Barnes,  40  Mieh.  383;  Otsego  Lake  Tp.  v.  Kirsten,  72  Mich. 
Kundinger  v.  City  of  Saginaw,  59  1;  People  v.  O'Neill,  107  Mich. 
Mich.  355;  Martin  v.  Farmers'  Mut.  566;  Monaghan  v.  Agricultural  Fire 
Fire  Ins.  Co.,  139  Mich.  148;  Smith  Ins.    Co.,    53    Mich.    238;    People   v. 


1020  Jury  §  18 

about  to  serve  as  a  juror  is  not  an  elector,  that  he  has 
served  as  a  juror  upon  the  regular  panel  or  as  talesman 
in  the  court  within  one  year  previous  to  the  challenge,'^ 
that  he  is  infirm  or  decrepit,'^  that  he  is  not  of  sound 
judgment,'^  that  he  has  applied  to  be  selected  as  a  juror 
or  has  caused  such  application  to  be  made  in  his  behalf,'* 
and  that,  except  in  the  Upper  Peninsula,  the  name  of  a 
juror  chosen  from  the  regular  panel  does  not  appear  upon 
the  assessment  roll  of  the  township,  ward  or  assessment 
district  in  which  he  resides,"'^*  although  the  fact  that  one 
of  the  jurors  who  was  summoned  as  a  talesman  was  not 
named  on  any  of  the  assessment  rolls  for  the  county  would 
not  disqualify  him.'''^  And,  in  general,  the  lack  of  any 
qualification  which  the  law  requires  of  jurors  will  con- 
stitute a  valid  ground  for  challenge,  whether  it  affects  the 
competency  of  the  person  to  serve  at  all  at  the  term  at 
which  he  was  summoned  or  only  his  competency  to  try 
the  issue  in  the  particular  instance.  A  juror  is  presumed 
to  be  competent  in  the  absence  of  proof  to  the  contrary." 

Wheeler,   185   Mich.   164;    People   v.  72  Jud.   Act,   ch.   2,   §121;    Comp. 

Peck,     139    Mich.     680 ;     Peoplo    v.  Laws   1915,   §  12190. 

Caldwell,  107  Mich.  374;   People  v.  73  Jud.   Act,  ch.   2,   §121;    Comp. 

Keefer,  97  Mich.  15.   But  the  ques-  Laws  1915,  §  12190. 

tion  is  properly  ruled  out  where  the  74  Jud.   Act,  eh.   2,   §  121 ;    Comp. 

counsel   declines   to   add   the   words  Laws  1915,  §  12190. 

"if  either  way."     People  v.  Cald-  75  Jud.   Act,  ch.   2,   §121;    Comp. 

well,    107    Mich.    374,    followed    in  Laws    1915,    §12190;     Schlacker    v. 

People  V.  Wheeler,  185  Mich.  164.  Ashland    Iron    Min.    Co.,    89    Mich. 

Disqualification    because    of    fixed  253 ;    Smaltz    v.    Boyce,    109    Mich, 

opinion,  as  stated  by  the  juror  him-  382;    People   v.   Thacker,   108   Mich, 

self  pending  the   trial,  warrants,  it  652;   Smith  v.  German  Ins.  Co.,  107 

seems,    a    discharge    of    the    jury.  Mich.  270.    In  the  Upper  Peninsula, 

People  V.  Sharp,  163  Mich.  79.  jurors  are  drawn  from  the  various 

71  Jud.   Act,   ch.   18,    §42;    Comp.  poll   lists   of   the   several    townships 

Laws  1915,  §   12614;    Courvoisier  v.  and   wards.     How.    Stat.    (2nd   ed.) 

Eaymond,   23   Colo.   113;    Burden   v.  12917;   Comp.  Laws  1915,  §14598. 
People,   26   Mich.    162 ;    Williams   v.  76  Stewart  v.  People,  23  Mich.  63 ; 

City    of    Grand    Rapids,    53    Mich.  Reed   v.   Peacock,   123   Mich.   244. 
271;    People   v.   Thacker,  108  Mich.  77  Ncal  v.  Neal,  181  Mich.  114. 

652. 


§  19  Jury  1021 

In  civil  cases,  the  mere  formation  of  an  opinion  does 
not,  of  itself,  disqualify.'^  The  formation  of  an  opinion 
does  not  disqualify  if  the  juror  states  he  nevertheless  be- 
lieves he  can  render  a  fair  and  impartial  verdict.'''* 

Jurors  who  state  they  would  allow  less  weight  and 
credit  to  defendant's  testimony  because  he  was  a  saloon 
keeper  are  subject  to  challenge.^"  So  a  challenge  should 
be  sustained  where  a  juror  does  not  believe  in  the  en- 
forcement of  the  law  under  which  the  action  is  brought.'^ 

A  juror  must  be  a  disinterested  person,"''  and  hence  an 
employee  of  a  party  should  be  rejected  when  chal- 
lenged."' But  it  is  not  ground  of  challenge  that  a  juror 
and  a  party  were  both  Odd  Fellows,"*  nor  is  membership 
in  a  mutual  insurance  company  which  is  a  party ,"^  nor 
is  friendship  for  a  party  where  the  juror  states  he  can 
and  would  try  the  case  impartially."^ 

Independent  of  statute,  a  taxpayer  in  a  municipality 
is'not  subject  to  challenge  for  cause  in  a  case  where  the 
municipality  is  a  party."''' 

§  19.  Scope  of  examination  of  jurors. 

Much  latitude  is  allowed  in  the  examination  of  a  juror 
on  his  voir  dire,""  but  the  trial  judge  may  reasonably 

78  Sullings  V.  Shakespeare,  46  ing  rule  to  employees  of  another 
Mich.  408.  corporation  controlled  by  defendant 

79  Rice  v.  Rice,  104  Mich.  371.  corporation.      See   Goodrich   v.   Bur- 

80  Brockway  v,  Patterson,  72  Mich.  dick,  26  Mich.  39. 

122.  84  Reed     v.     Peacock,     123    Mich. 

81  Theisen  v.  Johns,  72  Mich.  28.5.       244. 

So    where    saloonkeeper    was    op-  85  Martin   v.  Farmers'  Mut.   Fire 

posed    to    some    provisions    of    the  Ins.  Co.,  139  Mich.  148. 

liquor  laws,  in  action  for  damages  86  White    v.    Cowing,    205    Mich, 

from    sale    of    liquor.      Pearson    v.  318.     See  also  Brennan  v.  O'Brien, 

Schoenberg,  167  Mich.  255.  121  Mich.  491. 

82  Michigan  Air  Line  Ry.  Co.  /.  87  City  of  Detroit  v.  Detroit  Ry., 
Barnes,  40  Mich.  383;  Kundinger  v.  134  Mich.  11. 

City  of  Saginaw,  59  Mich.  355.  Same   rule  enacted   by  statute,  in 

83  Pearce  v.  Quincy  Min.  Co.,  149  penal  actions,  see  Jud.  Act,  ch.  18, 
Mich.   112;    Poklcnk   v.   Isle   Royale  S26;   Comp.  Laws  1915,  §12598. 
Copper  Co.,   187   Mich.   644,  extend-  «8  Suyder  v.   Mathison,   196  Mich. 


1022  Jury  §  19 

limit  the  extent  of  the  examination.®'  A  juror  may  be 
asked  wliich  party  he  would  favor  if  the  evidence  was 
equally  balanced.®"  It  has  been  held  proper  to  ask  jurors 
as  to  their  prejudices  against  certain  defenses  set  up, 
such  as  limitations,®^  and  to  ask  jurors  if  they  would 
consider  a  certain  act  negligent.®'^  If  the  witness  denies 
prejudice,  it  has  been  held  that  witnesses  may  be  called 
to  show  it.®'  If  the  attorney  for  defendant  is  not  present 
when  the  case  is  called  and  plaintiff's  evidence  intro- 
duced, he  cannot  tliereafter  be  permitted  to  examine  the 
jury.®* 

If  a  juror  is  passed  for  cause  after  counsel  for  the  op- 
posing party  has  asked  him  an  improper  question  on  his 
voir  dire,  the  error  is  waived,  especially  where  no  request 
to  charge  on  the  subject  is  made.®^  So  if  the  objecting 
party  does  not  exhaust  his  peremptory  challenges,  or  the 
juror  is  excused  for  cause,  error  in  allowing  or  rejecting 
questions  on  the  voir  dire  are  harmless.®® 

§  20.  Rejection  of  juror  by  court  of  its  own  motion. 

In  some  instances,  the  court  may  properly  excuse 
jurors  upon  his  own  motion  and  without  any  challenge 
being  interposed  by  either  of  the  parties,  and  even 
against  their  protest.  To  secure  an  impartial  jury,  the 
court  may  very  properly  reject  a  juror  on  a  ground  which 
would  not  be  strictly  sufficient  to  sustain  a  challenge  for 
cause,  and  so  long  as  an  impartial  jury  is  obtained,  neith- 
er party  has  a  right  to  complain  of  the  action  of  the 

378;  Monaghan  v.  Agricultural  Fire  92  Stowell  v.  Standard  Oil  Co.,  139 

Ins.   Co.,   53   Mich.    246;    People   v.  Mich.  18. 

Wright,  170  Mich.  154.  93  People  v.  Evans,  72  Mich.  367. 

89  Ford  V.  Cheever,  113  Mich.  440 ;  94  Kincade  v.  Peck,  193  Mich.  207. 
Gornetzky  v.  Gornetzky,  174  Mich.  95  Link  v.  Fahey,  200  Mich.  308; 
492.  Snyder  v.  Mathison,  196  Mich.  378. 

90  See  §  18,  note,  ante.  96  Wm.  B.  Eoach  &  Co.  v.  Blair, 

91  Towl  V.  Bradley,  108  Mich.  409.  190  Mich.  11. 


§  21  Jury  1023 

court.^'''  The  court  may,  in  its  discretion,  reject  a  juror 
for  cause  at  any  time  before  the  introduction  of  evi- 
dence.^* But  a  judge  has  no  right  to  reject  a  qualified 
juror  with  whom  the  parties  are  satisfied,  unless  for  suffi- 
cient cause,  and  such  cause  should  appear  upon  the  rec- 
ord. A  circuit  judge  is  not  invested  with  any  right  of 
peremptory  challenge.  He  can  excuse  for  cause,  but  the 
cause  must  be  stated  so  that  it  may  appear  of  record. 
He  cannot  discharge  jurors  at  his  mere  will  or  caprice.*^ 

§  21.  Special  or  struck  juries. 

When  it  appears  to  the  circuit  court  that  a  fair  and  im- 
partial trial  will  be  more  likely  to  be  obtained  in  a  case 
pending  therein  by  having  a  struck  jury,  the  court  will 
order  a  special  jury  to  be  struck  for  the  trial  of  the 
cause.^ 

The  party  obtaining  an  order  for  a  special  jury  is  re- 
quired to  give  a  notice  of  eight  days  of  the  time  when  he 
will  attend  before  the  clerk  of  the  county  in  which  the 
venue  in  the  action  is  laid  for  the  purpose  of  having  such 
jury  struck.*^  At  the  time  appointed,  the  clerk  is  re- 
quired to  attend  at  his  office  with  the  original  lists  of 
grand  and  petit  jurors  returned  to  him  who  are  then 
liable  to  serve  and,  in  the  presence  of  the  parties  or  their 
counsel,  is  required  to  strike  a  jury  as  follows : 

1.  The  clerk  selects  from  such  lists  the  names  of  forty- 
eight  persons  whom  he  deems  most  indifferent  between 
the  parties  and  best  qualified  to  try  the  cause. 

97  Atlas  Min.  Co.  v.  Johnston,  23  153  Mich.  567,  and  see  Cooper  v. 
Mich.  36;  Michigan  Condensed  Milk       Carr,   161   Mich.   405. 

Co.  V.  Wilcox,  78  Mich.  431;   Luebe  99  Welch  v.   Tribune   Pub.  Co.,  83 

V.  Thorpe,  94  Mich.  268 ;  Torrent  v.  Mich.  661.     See  also  §  7,  ante. 

Yager,    52    Mich.    506 ;     People     v.  1  .Tud.    Act,    ch.    18,    §  43 ;    Comp. 

Baker,  60  Mich.  277;  People  v.  Car-  Laws  1915,  S  12615. 

rier,     46     Mich.     442;      People    v.  2Jud.    Act,    ch.    18,    §44;    Comp. 

Thacker,  108  Mi(>'h.  652.  Laws   1915,   §  12616. 

98  Quay    v.    Duluth,    etc.,    E.    Co., 


1024  Jury  §  21 

2.  The  party  on  whose  application  the  jury  was 
ordered  or  his  attorney  then  strikes  ont  one  of  such 
names,  and  the  opposite  party,  or  his  agent  or  attorney, 
strikes  out  another  of  such  names,  and  so  alternately  un- 
til each  party  has  stricken  out  twelve  names. 

3.  If  either  party  fails  to  attend  at  the  time  and  place 
of  striking  such  persons  or  neglects  to  strike  out  any 
names,  the  clerk  will  strike  out  such  names  for  him. 

4.  The  clerk  is  required  thereupon  to  make  out  a  list 
of  the  names  of  the  twenty-four  persons  not  stricken  out 
and  certify  those  persons  to  be  the  persons  drawn  to 
serve  as  jurors  pursuant  to  the  order  of  the  court,  and 
deliver  such  list,  so  certified,  to  the  sheriff  of  the  county.' 

It  is  thereupon  the  duty  of  the  sheriff  to  summon  the 
persons  whose  names  are  contained  on  the  list  so  de- 
livered to  him  by  the  clerk,  in  the  same  manner  as  other 
jurors  are  required  to  be  summoned,  and  return  the  names 
of  those  summoned  to  the  court  at  whicli  they  are  re- 
quired to  appear  as  jurors.* 

A  jury  will  be  formed,  in  the  manner  directed  by  law 
in  respect  to  other  juries,  from  the  persons  so  summoned 
and  appearing,  who  will  try  the  cause  in  which  such  jury 
has  been  ordered;  and  the  court  has  the  same  power  to 
excuse  or  discharge  jurors  as  in  other  cases.* 

If  it  should  appear  that  the  clerk  is  interested  in  the 
cause  or  is  related  to  either  of  the  parties  or  not  in- 
different between  them,  the  court  will,  upon  that  fact 
being  made  to  appear,  appoint  two  proper  persons  to 
strike  a  special  jnry,  who  will  have  the  same  powers  as 
the  clerk  for  that  purpose  in  relation  to  the  striking  and 
to  the  certifying  and  delivering  to  the  sheriff  the  names 
of  the  persons  struck  as  jurors.® 

3Jud.    Act,    ch.    18,  §45;    Coiup.  5  Jud.    Act,    ch.    18,    8  47;    Conip. 

Laws  1915,  §  12617.  Laws  1915,  §  12619. 

4  Jud.    Act,    ch.    18,  §46;    Conip.  6  Jud.    Act,    ch.    18,    §48;    Comp. 

Laws  1915,  §  12618.  Laws  1915,  §  12020. 


§  21  Jury  1025 

Form  of  Affidavit  for  a  Struck  Jury 
(Title  of  court  and  cause.) 
County  of   ,  ss : 

A.  B.,  the  said  plaintiff,  being  duly  sworn,  deposes  and  says  that  this 
action  is  brought  against  the  said  defendant  for  (state  briefly  and  clearly 
the  cause  of  action),  and  that  a  fair  and  impartial  trial  will  be  more 
likely  to  be  obtained  in  this  cause  by  having  a  struck  jury,  for  the  reason 
that   (set  forth  the  facts  constituting  the  reason). 

Subscribed,  etc.  A.  B. 

Form  of  Notice  of  Striking  a  Special  Jury 

(Title  of  court  and  cause.) 

Sir: 

Please  take  notice  that  the  said  plaintiff  will  attend  before  J.  W.,  clerk 

of  said  court,  at  his  office  in  the    of   upon  the   day 

of    ,  A.  D ,  at    o'clock  in  the    noon,   for  the 

purpose  of  having  a  special  jury  struck  for  the  trial  of  this  cause  in 
accordance  with  an  order  of  said  court  heretofore  made,  a  copy  of  which 
is  hereto  annexed. 

Dated,  etc. 

Yours,  etc., 

J.  K., 
To  K.  L.,  Attorney  for  Plaintiff, 

Attorney   for   Defendant. 

Form  of  Order  for  a  Struck  Jury 

(Title  of  cause.) 

On  reading  and  filing  the  affidavit  of  A.  B.,  the  above-named  plaintiff, 
and  it  appearing  to  the  court  therefrom  that  a  fair  and  impartial  trial  in 
said  cause  will  be  more  likely  to  be  obtained  by  having  a  struck  jury  for 
the  trial  thereof,  on  motion  of  J.  K.,  attorney  for  plaintiff,  it  is  ordered 
that  a  special  jury  be  struck  for  the  trial  of  said  cause. 

Form  of  Clerk's  Certificate  of  Persons  Drawn  for  Special  Jury 

(Title  of  court  and  cause.) 

I  hereby  certify  that  the  following  are  the  names  of  the  persons  drawn 
to  serve  as  jurors  in  the  above  entitled  cause  pursuant  to  the  order  of  said 
court  heretofore  made  herein:     (List  of  the  twenty-four  persons  drawn.) 

In  testimony  whereof,  I  have  hereunto  set  my  hand  and  affixed  tlie  seal 

of    .said   court,    at    the    of    ,    this    day    of    , 

A.  D 

J.  W^  Clerk. 

1  Abbott— 05 


102G  Jury  §22 

§  22.  Inability  of  juror  to  attend  or  serve  after  jury  has 
been  impaneled. 
After  a  jury  lias  been  impaneled  in  a  case,  if  any  juror 
dies  or  is  unable  to  attend  or  perform  his  duties  in  a 
proper  manner  by  reason  of  the  serious  illness  of  himself 
or  the  death  or  serious  illness  of  a  member  of  his  family 
or  any  other  fact  incapacitating'  him  for  further  service 
or  attendance,  the  court  must  dischar<i;e  the  juiy,  unless 
tlie  parties  agree  to  proceed  with  a  number  less  than 
twelve.  But  if  the  illness  is  slight  or  the  other  fact  is 
merely  of  an  ephemeral  nature,  a  short  postponement  of 
tile  trial  may  be  ordered,  until  the  impediment  is  re- 
moved. Tlie  matter,  however,  rests  within  the  sound  dis- 
cretion of  the  court  to  take  such  action  in  the  premises 
as  the  circumstances  appear  to  warrant.  When  a  jury  is 
discharged  in  an  exigency  of  this  kind,  the  fact  and  the 
cause  thereof  should  be  entered  in  the  journal. 

§  23.  Fine  for  neglect  to  attend  as  juror. 

When  any  person  shall  have  been  personally  sum- 
moned to  attend  as  a  juror  to  inquire  into  any  matter  or 
thing,  or  to  hear  and  try  any  controversy,  in  any  spe- 
cial proceeding  or  matter  specified  in  the  statute,  and 
shall  wilfully  neglect  to  attend  in  pursuance  of  such  sum- 
mons, lie  may  be  fined  by  the  officer  issuing  the  same,  in 
a  sum  not  exceeding  twenty-five  dollars;  but  this  section 
shall  not  extend  to  any  case  where  other  special  pro- 
vision is  made  by  law,  for  punishing  the  default  of  any 


juror."'' 


JUSTICES   OF   THE   PEACE 

I.  In  General 


§    1.  Jurisdiction. 

§    2.  Place  for  holding  roiirt. 

§    3.  Practice  in  general. 

7Jik1.    Act,    ch.    20,     8fi;     Comp. 
Laws  191. "^j  S  12742. 


Justices  of  the  Peace  1027 

II.  Removal  ok  Causes  When  Title  to  Land  Comes  in  Question 
§    4.  Limitation  of  .iurisdiction. 

§    5.  When  title  is  *''in  question." 

§    6.  Plea  a'nd  notice. 

§    7.  Bond  and  costs. 

§    8.  Effect  of  want  of  or  failure  to  pay. 

§    9.  Proceedings  wlien  title  comes  in  question  on  trial. 

§  10.  Issue  on  removal  to  circuit  court. 

§  11.  Costs. 

§  12.  Proceedings  wliere  only  ^lart  of  cause  affects  title. 

III.  Filing  Transcript  of  Justice's  Judgment  in  Circuit  Court 
§  13.  Proceedings  to  obtain  a  transcript. 

§  14.  Affidavit  to  be  delivered  to  justice. 

§  15.  Requisites  of  transcript. 

§  16.  Affidavit  of  amount  due,  filing  of  transcript  and  entry  of  judgment. 

§  17.  Effect  of  docketed  transcript. 

§  18.  Nature  of  proceeding. 

§  19.  How  proceedings  may  be  reviewed. 

IV.  Certiorari  to  Justices  of  the  Peace 

§  20.  When  writ  lies. 

§  21.  Notice  and  affidavit. 

§  22.  Allowance  of  writ. 

§  2.'5.  Issuing  of  writ. 

§  24.  Bond. 

§  25.  Service  of  writ,  bond  and  affidavit  upon  justice. 

§  26.  Effect  of  service  as  stay. 

§  27.  Return  to  writ. 

§  28.  Argument  of  cause. 

§  29.  What  will  be  reviewed. 

§  oO.  Judgment. 

§  .31.  Costs. 

§  32.  Restitution  of  money  collected. 

§  33.  Execution. 

V.  Appeals  fkom  Justices  of  the  1'eace 

A.  Cencral  Ajipeals 

§  34.  In  what  cases  an  ajipeal  lies. 

§  35.  After  judgment  of  nonsuit. 

§  36.  Who  may  appeal. 

§  37.  Time  for. 

S  38.  Ap])eals  by  special  leave  after  five  day  limitation  has  expired. 

§39.  Under    what    circumstances  dilatory  appeal  will  be  allowed. 

§40.  Nature  and  extent  of  power  to  allow  dilatory  ai)peals. 

§41.  How  decision  on  ap])lication  reviewed. 

§42.  When  time  for  appealing  may  be  extended  by  stipulation. 


1028  Justices  of  the  Peace  §  1 

§  43.  Affidavit. 

§  44.  Effect  of  absence  of  proper  affidavit. 

§  45.  Bond. 

§  46.  By  ^^•honl  to  be  approved. 

§47.  Jiistiiication  by  sureties. 

§  48.  Purpose  of  bonds. 

§  49.  Effect  of  absence  of  proper  bond. 

§  50.  Payment  of  costs  to  the  justice. 

§  51.  Service  of  affidavit  and  bond  where  justice  is  absent. 

§  52.  Proceedings  if  office  of  justice  has  terminated. 

§  5;$.  Return  of  justice. 

§  54.  Filing  return   in  appellate  court. 

§55.  Compelling  justice  to  make  return. 

§56.  Compelling  amendment  of  return. 

§57.  Imprisonment  of  justice  to  compel  obedience. 

§  58.  Status  of  appealed  case  in  circuit  court. 

§  59.  Trial  by  court  or  jury. 

§  60.  How  appeal  case  put  on  calendar. 
§  61.  Service  of  papers  in  appeal  cases. 
§  62.  Pleadings. 

§  63.  Amendments. 

§  64.  Admissibility  of  evidence. 

§  65.  General  appeals  as  confined  to  trial  de  novo. 

§  66.  Judgment  and  execution. 

§  67.  Against   sureties  on   appeal   bonds. 

§  68.  Costs. 

B.    Special  Appeals 
§  69.  Nature  of. 
§  70.  Wlicn   proper. 
§  71.  Affidavit. 
§  72.  Return. 

§  73.  Hearing  and   wliat   will   l)c   reviewed. 
§  74.  Judgment. 

I.  In  General 

§  1.  Jurisdiction. 

Justices  of  the  peace  are,  by  the  constitution,  vested 
witli  exclusive  jurisdiction  in  civil  cases  to  the  amount 
of  one  liundred  dollars,  and  concurrent  jurisdiction  in 
such  cases  to  the  amount  of  three  hundred  dollars,  which 
may  be  increased  to  five  hundred  dollars,  with  such  ex- 
ceptions and  restrictions  as  may  be  provided  by  law.* 

1  Const.  Art.  VII,  see.  16. 


§  1  Justices  of  the  Peace  1029 

Under  the  terms  of  the  statute,  they  have  original  juris- 
diction of  all  civil  actions  wherein  the  debt  or  damages 
do  not  exceed  the  sum  of  one  hundred  dollars,  and  con- 
current jurisdiction  in  all  civil  actions  upon  contract, 
express  or  implied,  wherein  the  debt  or  damages  do  not 
exceed  three  hundred  dollars,  with  this  exception,  that 
no  justice  of  the  peace  has  cognizance  of  real  actions, 
actions  for  libel  or  slander,  malicious  prosecution  or  false 
imprisonment  and  actions  against  executors  or  adminis- 
trators as  such,  except  in  the  cases  specially  provided  by 
law,  nor,  in  general,  where  the  title  to  real  estate  comes 
in  question;  and  they  have  no  jurisdiction  of  actions 
against  life  insurance  companies,  co-operative  and  mu- 
tual benefit  associations  or  fraternal  benefit  societies  for 
any  liability  arising  out  of  any  policy  or  benefit  certificate 
contract,  nor,  in  general,  against  municipal  corporations, 
but  they  are  expressly  endowed  with  jurisdiction  in  ac- 
tions for  damages  resulting  from  obstructions  to  high- 
ways, subject  to  the  restrictions  stated  relative  to  the 
amount  of  damages,'^  and  have  jurisdiction  in  all  cases  of 
assumpsit,  trespass  on  the  case  and  replevin  against 
school  districts,  when  the  amount  claimed  or  matter  in 
controversy  does  not  exceed  one  hundred  dollars.*  And 
in  regard  to  this,  it  should  be  observed  that  jurisdiction 
depends,  not  upon  the  amount  actually  recovered,  but 
upon  the  amount  claimed  in  the  writ  or  declaration.* 
And  while  the  mere  claim  or  allegation  of  the  plaintiff 

2  Jud.  Act,  ch.  66,  §§  1,  4;  Coiiip.  .'590;  Cillcy  v.  Van  Patten,  68  Mich. 
Laws   1915,   §§14166,  14169.  80;    Humphrey    v.    Bayn,   43    Mich. 

3  Jud.  Act,  ch.  66,  §2;  Conip.  56.5;  Carew  v.  Matthews,  41  Mich. 
Laws  1915,  §14167.  576;   Gray   v.   Blanchard,  97   U.    S. 

4  Strong  V.  Daniels,  :\  Mich.  466;  564;  Wilson  v.  Daniel,  .'{  Dall.  (U. 
Inkster  v.  Carver,  16  Mich.  484;  S.)  401;  Gordon  v.  Longest,  16  Pet. 
Merrill  v.  Butler,  18  Mich.  294;  (U.  S.)  97,  In  replevin,  .iuri.sdiotion 
Dinnen  v.  Baxter,  18  Mich.  457;  depends  upon  the  value  alleged. 
Raymond  v.  Hinkson,  15  Mich.  ll.'J;  Sager  v.  Shutts,  53  Mich.  116;  Burt 
Eldrcd  V.  Woolavcr,  46  Mich.  241;  v.  Addison,  74  Mich.  TAO;  Render- 
Montgomery    v.    Martin,    104    Mich.  son  v.  Dcsborough,  28  Mich.  170. 


1030  Justices  of  the  Peace  §  1 

is  not  conclusive  where  it  is  apparently  made  in  bad 
faith  and  a  fraud  upon  the  court,*  it  in  general  is  well 
settled  that  the  test  of  jurisdiction  is  tlie  sum  demanded 
in  the  writ  or  declaration;  and  the  justice  will  not  be 
ousted  of  his  jurisdiction  by  a  verdict  or  proof  of  dam- 
ages beyond  his  jurisdiction.  In  such  case,  the  excess 
may  be  remitted  and  judgment  rendered  for  the  balance.® 
Justices'  courts  are  vested  with  all  such  powers,  for 
the  i)urpose  of  exercising  their  jurisdiction,  as  are  usual 
in  courts  of  record,  except  the  power  of  setting  aside  a 
verdict  and  arresting  judgment  thereon.''^  They  are  not 
regarded  as  courts  exercising  special  and  limited  powers 
in  the  strict  sense.  They  have  jurisdiction  clearly  de- 
fined by  law,  exclusive  in  some  cases,  concurrent  in 
others,  and,  within  their  jurisdiction,  are  the  ordinary 
tribunals  of  justice.  Tiieir  authority  is  in  no  sense  con- 
traiy  to  the  course  of  the  common  law,  any  more  than 
that  of  the  circuit  courts.^  But  their  powers  are  statu- 
tory and  their  jurisdiction  must  affirmatively  appear.* 
Yet,  while  jurisdiction  in  the  first  instance  will  not  be 
presumed,  it  will  be  presumed,  after  jurisdiction  of  the 
cause  and  of  the  parties  does  appear,  that  the  justice 
acted  regularly  and  that  his  judgment  is  valid,  unless 
the  contrary  appears."  And  the  contraiy  cannot  be 
made  to  apjiear,  for  purposes  of  collateral  attack,  by  evi- 
dence aliunde." 

5  Kjttridgc  v.  Miller,  45  Mich.  9o ;  Spear  v.  Carter,  1  Mich.  19; 
478;  Fix  v.  Sissung,  83  Mich.  561;  Mudge  v.  Yaples,  58  Mich.  307; 
Kittridge  v.  Rollins,  12  Vt.  541;  Wells  v.  United  States  Fidelity  & 
Cooley  V.  Aiken,  15  Vt.  327.  Guaranty  Co.,  160  Mich.  213;  Davi- 

6  Cilley   V.   Van   Patten,   68   Mich.  son  v.  Davison,  99  Mich.  625. 

80.  10  Saunders  v.  Tioga  Mfg.  Co.,  27 

7Jud.    Act,    ch.    66,    §3;  Comp.       Mich.   520;    Schlatterer   v.   Nickode- 

Law  1915,  §  14168.  nuis,    50    Mich.    315;    O'Donnell    v. 

SGoodsell    V.    Leonard,    23  Mich.       Wade,   151   Mich.  103;   Bernstein  v. 

374.  Thayer,  157  Mich.  625. 

9  Harbour    v.    Eldred,    107  Mich.          11  Miller  v.  Smith,  115  Mich.  427. 


§  5  Justices  of  the  Peace  1031 

§  2.  Place  for  holding  court. 

No  justice  of  the  peace  can  hold  court  or  try  any  cause, 
civil  or  criminal,  in  any  township  or  city  other  than  that 
in  which  he  was  elected  and  qualified,  except  in  cases 
where  special  provision  is  otherwise  made  by  law.^^  He 
cannot  lawfully  hold  court  in  any  bar-room  or  other 
place  where  intoxicating  liquors  are  sold." 

§  3.  Practice  in  general. 

This  is  not  within  the  scope  of  this  work.  The  statutes 
relating  thereto  are  found  in  chapters  66  to  80  inclusive 
of  the  Judicature  Act. 

II.  Removal  of  Causes  When  Title  to  Land  Comes  in 

Question 

§  4.  Limitation  of  jurisdiction. 

.Justices  of  the  peace  in  this  state  have  no  jurisdiction 
of  actions  where  the  title  to  real  estate  comes  in  ques- 
tion.^* 


> } 


§5.  When  title  is  ''in  question.' 

The  title  to  land  is  not  ''in  question,"  within  the  stat- 
ute, unless  it  is  in  issue  in  the  case,  and  it  is  not  in  issue 
unless  the  title  is  essential  to  the  plaintiff's  recovery  or 
the  defendant's  defense."  But  it  is  not  necessary  that 
there  be  a  claim  of  title  in  the  declaration  or  other  plead- 
ing for  the  title  to  be  in  question.  It  is  enough  if  proof 
of  title  is  required  either  to  sustain  or  to  defeat  the  plain- 
tiff's recovery.^^ 

Whether  the  right  is  a  mere  right  of  possession,  or,  on 
tlie  other  baud,  is  tlie  complete  owiioi-sliip,  it  is  title  of 

12.Tud.    Aft,    ch.    ()G,  §1;    Comji.  Laws     191.^,     S141G9;     Gorham     v. 

Laws  1915,  §  14166.  Witlioy,    .12    Mich.    .10;    LeBlanc    v. 

13.Tiul.    Act,    ch.    66,  §9;    Coin]..  Kriioor,  7;")  Mich.  .161. 

Laws     1915,     §14174;  Savicis     v.  15  Ostroin  v.  Potter,  71   Midi.  44. 

Chipman,  1   Mich.   116.  10  Ostroni  v.  Potter,  71  Mich.  44; 

HJu.l.    A<-t,    ch.    66,  §4;    Coinp.  Walters  v.   Tcfft,  .17   Mi.-h.   :U1U. 


1032  Justices  of  the  Peace  §  5 

some  sort,  and  it  has  been  held  that  it  is  immaterial  for 
the  purposes  of  the  statute  of  what  sort.^'  But  an  issue 
as  to  the  peaceable  possession  merely  does  not  involve 
any  question  of  title.^' 

The  title  is  not  in  question  when  it  is  alleged  by  one 
party  and  admitted  by  the  other,  as  where  the  plaintiff 
sets  up  title  in  his  declaration  and  the  defendant  con- 
cedes it."  The  failure,  however,  of  the  defendant  to  give 
notice  with  his  plea  of  the  general  issue  that  the  title 
will  come  into  question  cannot  operate  as  an  admission 
of  title,  unless  the  plaintitf  in  his  declaration  claims  the 
title."  If  the  plaintiff  does  claim  the  title  in  his  declara- 
tion, the  statute  declares  that  the  failure  of  the  defend- 
ant to  give  such  notice  (and  deliver  the  bond  required 
and  pay  the  costs  and  fees,  as  will  be  presently  ex- 
plained,) will  be  construed  as  an  admission  of  such  title 
by  the  defendant.'^^  Thus,  in  an  action  for  injury  to 
plaintiff's  land,  the  ownership  in  fee  of  which  he  avers 
in  his  declaration,  to  which  the  defendant  merely  pleads 
the  general  issue,  the  title  to  the  land  is  not  thereby  put 
in  issue.**  But  the  mere  averment  in  a  declaration  that 
the  land  is  the  "close  of  the  plaintiff"  is  not  a  claim  of 
any  title  in  the  plaintiff,  because  such  averment  may  be 
supported  by  proof  that  the  plaintiff  was  in  peaceable 
possession,  even  though  he  had  no  title. *^ 

The  mere  introduction  by  a  party  of  evidence  of  title 

"Gay    V.    Hults,    55    Mich.    327;  21Jud.   Act,  ch.   69,   §22;    Comp. 

Vandoozer  v.  Dayton,  45  Mich.  247;  Laws  1915,  §  14236. 

Riggs    V.    Sterling,    51    Mich.    157;  82  Fisher    v.    Dowling,    66    Mich. 

Fowler  V.  Hyland,  48  Mich.  179.  370;    Druse    v.    Wheeler,    22    Mich. 

liNewcomb    v.    Irwin,    55    Mich.  439;  Walters  v.  Tefft,  57  Mich.  390. 

620;  Vandoozer  v.  Dayton,  45  Mich.  See  Rawson  v.  Finlay,  27  Mich.  268; 

247;    Fisher    v.    Dowling,    66    Mich.  Grand  Rapids  Nat.  Bank  v.  Kritzer, 

370.  116  Mich.  688. 

1>  Stout  V.   Keye8,  2   Doug.   184;  23  Vandoozer  v.  Dayton,  45  Mich. 

Ostrom  V.  Potter,  71  Mich.  44.  247. 

SO  Rawson  V.  Finlay,  27  Mich. 
268;  Vandoozer  v.  Dayton,  45  Mich. 
247. 


§  7  Justices  of  the  Peace  1033 

to  land  for  the  purpose  of  identifying  timber  cut  from 
the  land  does  not  bring  the  title  to  the  land  into  ques- 
tion; **  and,  as  deeds  of  conveyance  of  land  may  properly 
be  used  for  many  purposes  besides  proving  title,  tlic 
mere  introduction  of  such  deeds  does  not  bring  the  title 
in  question.^^ 

§  6.  Plea  and  notice. 

The  statute  provides  that,  in  eveiy  action  where  the 
title  to  land  in  any  wise  comes  in  question,  the  defendant 
may  give  notice  thereof  under  the  general  issue,  upon  the 
return  day  or  any  adjourned  day  of  the  action,  and  may 
also  give  notice,  as  in  other  cases,  of  any  other  matter  of 
defense.^®  The  plea  and  notice  must  be  in  writing, 
signed  by  the  defendant  or  his  attorney  and  delivered  to 
the  justice."    A  mere  oral  notice  is  a  nullity.^' 

§  7.  Bond  and  costs. 

At  the  time  of  tendering  the  plea  and  notice,  the  de- 
fendant, with  at  least  one  sufficient  surety  to  be  approved 
by  the  justice,  must  enter  into  a  bond  to  the  plaintiff  in 
a  penalty  of  at  least  two  hundred  dollars,  conditioned 
that  the  defendant  will  pay  any  judgment  that  may  be 
rendered  against  him  in  the  action  in  the  circuit  court; 
and  he  must  also  pay  the  plaintiff's  costs  legally  incurred 
at  that  time,  not  exceeding  the  amount  allowed  by  law  in 
justice's  courts,  and  also  the  sum  of  one  dollar  to  the 
justice  for  certifying  the  cause  to  the  circuit  court,  to- 
gether with  the  sum  of  three  dollars  to  be  paid  to  the 
clerk  of  the  county  by  tlie  justice  at  the  time  he  certifies 
the  cause  to  tlie  circuit  court.'^* 

The  bond  must  be  delivered  and  the  fees  and  costs  paid 

24  Hart  v.  Hart,  48  Mich.  17.').  27  Jud.   Act,   ch.   69,    §19;    Comp. 

26  Schlatterer    v.    Nickodemus,    50  Laws    1915,    §  142.'?.'}. 
Mich.  315.  28  0strom  v.  Potter,  71  Mich.  44. 

26  Jud.   Act,  ch.   G9,   §18;    Comp.  29  .Jud.   Act,  ch.   69,   §20;    Comp. 

Laws  1915,  §  U2?,2.  Laws  1915,  g  14234. 


1034  Justices  of  the  Peace  §  7 

to  the  justice  at  the  time  of  tendering  the  plea  and  no- 
tice.^°  It  thereupon  becomes  the  duty  of  the  justice,  with- 
out further  proceedings,  to  certify  the  cause  and  papers 
to  the  circuit  court  where  the  same  may  be  tried.^^  The 
costs  so  paid  ])y  the  defendant  will  be  allowed  to  him  if 
he  recover  costs  in  the  action  in  that  court.^^ 

§  8.  Effect  of  want  of  or  failure  to  pay. 

If  the  bond  be  not  delivered  and  the  fees  and  costs  paid 
as  specified,  the  justice  will  have  jurisdiction  of  the  cause 
and  must  proceed  therein,^^  and  the  defendant  will  be 
precluded  in  his  defense  from  all  evidence  drawing  in 
question  the  title  to  lands;  and  any  claim  of  title  to  lands 
made  by  the  plaintiff  in  his  declaration  and  therein  de- 
scribed will  be  deemed  to  be  admitted  by  the  defendant.'* 
This  applies  even  in  suits  to  recover  a  penalty  for  ob- 
structing a  highway.^® 

§  9.  Proceeding's  when  title  comes  in  question  on  trial. 

It  is  also  provided  that  if  it  appear  on  the  trial  before 
the  justice,  from  the  plaintiff's  own  showing,  tliat  the 
title  to  lands  is  in  question,  which  title  is  not  admitted 
by  tlie  defendant,  the  justice  shall,  without  further  pro- 
ceeding, certify  the  cause  and  papers  to  the  circuit  court, 
where  the  same  shall  be  tried. ^®  This  should  be  done 
even  though  the  plaintilf' s  declaration  does  not  allege 

30Ostroni  v.  Potter,  71  Mich.  44.  33  Hinchman     v.     Spaulding,     i;57 

The  failure  of  the  defendant  to  com-  Mich.    655;    Jacklin   v.    Soulier,    82 

ply  with  these  requirements  renders  Mich.  648. 

the  notice  a  nullity.  34  Jud.   Act,   ch.    69,    §22;    Comp. 

31  The  fact  that,  upon  the  trial  in  Laws  191.1,  §142:^6;  Maynard  v. 
the  circuit  court,  the  title  does  not  Reynolds,  I'M  Mich.  42;  Parkinson 
come    in    question    does    not    justify  v.  Woulds,  125  Mich.  325. 

the  dismissal  of  the  ease.     Taylor  v.  35  Ranisby    %•.    Bigler,    129    Mich, 

Montcalm  Circuit   Judge,  122  Mich.  570. 

692.  36  Jud.   Act,   ch.    69,    §2.3;    Comp. 

32  Jud.   Act,  ch.   69,   §21;    Comp.  Laws  1915,  §14237. 
Laws  1915,   §  14235. 


§  11  Justices  of  the  Peace  1035 

that  he  is  the  owner  of  the  hmd  in  fee  or  otherwise  and 
the  defendant  pleads  merely  the  general  issue.  If  the 
plaintiff,  in  order  to  recover,  has  to  prove  title  in  him- 
self and  the  defendant  does  not  admit  it,  the  justice 
should  certify  the  case  to  the  circuit  court. ^'^  But  if  the 
plaintiff'  in  his  declaration  claims  title  and  not  merely 
the  possession  of  the  land,  and  the  defendant  does  not 
give  notice  and  deliver  the  bond  and  pay  the  costs  and 
fees  as  before  mentioned,  the  defendant  thereby  admits 
the  title  to  be  in  the  plaintiff'  as  alleged  and  the  case 
should  not  be  certified.^^ 

§  10.  Issue  on  removal  to  circuit  court. 

When  a  suit  is  removed  from  a  justice's  court  by  the 
delivery  of  a  plea  and  notice  and  a  bond  as  above  de- 
scribed, the  plaintiff  will  be  permitted  to  declare  or  to 
give  evidence  only  for  the  same  cause  of  action  wiiereon 
he  relied  before  the  justice,  and  the  plea  and  notice  of 
the  defendant  must  be  the  same  which  he  tendered  be- 
fore the  justice.^^  The  circuit  court  has  no  power  to 
allow  the  plaintiff  to  amend  his  declaration  in  any  way 
which  would  have  the  effect  of  cutting  off  the  defendant 
from  a  defense  which  w^ould  have  been  available  and 
comi^lete  on  tlie  pleadings  as  they  stood  before  the  jus- 
tice.*°  But  the  allowance  of  an  amendment  eitiier  to  the 
declaration  or  to  the  notice  is  proper,  if  no  new  issue  is 
made  and  no  substantial  rights  affected." 

§11.  Costs. 

Where  the  defendant  delivers  no  notice  that  the  title 
to  land  will  come  in  question,  but  tlie  cause  is  certified 

37  Orris  v.  Koinpton,  10")  ^ficli.  40  McFarl.niip  v.  Ray,  14  Mich. 
229;   Ostrom  v.  Potter,  71   Midi.  44.  4fi.'). 

38  Maynard  V.  Reynolds,  1. ".7  Midi.  41  Alton  v.  Meeuweiilterjr,  108 
42,  Midi.   629. 

39Jud.   Act,   eh.    69,    §24;    Conii). 
Laws  191.'),  S  142.^8. 


1036  Justices  of  the  Peace  §  11 

by  the  justice  to  the  circuit  court  because  it  appears  on 
the  trial,  from  the  plaintiff's  own  showing:,  that  the  title 
is  in  question,  the  party  in  whose  favor  judgment  is  ren- 
dered in  the  circuit  court  will  recover  costs,  including  his 
costs  before  the  justice,**  even  though  the  circuit  court 
finds  that  the  title  was  not  in  question;"  but  where  the 
case  is  certified  because  of  the  defendant's  giving  notice 
and  delivering  a  bond  as  mentioned,  if  the  presiding 
judge  of  the  court  before  which  the  suit  is  tried  certifies 
that  the  title  to  lands  did  not  come  in  question,  if  the 
plaintiff  recovers,  he  will  recover  double  costs,  and  if  the 
defendant  recovers  judgment  other  than  that  of  non-suit, 
he  is  not  entitled  to  recover  costs,  but  must  pay  costs  to 
the  plaintiff." 

Where  the  plaintiff  is  entitled  to  recover  double  costs, 
such  right  is  vested  in  him  by  the  judgment  itself,  and 
no  special  order  or  finding  of  the  court  is  necessary  as  a 
preliminary  to  the  taxation  of  them  in  his  favor.**  The 
term,  "double  costs,"  as  used  in  this  connection,  is  con- 
strued according  to  the  old  rule  as  meaning  single  costs 
and  an  addition  of  one  half.*^ 

Whether  the  presiding  judge  shall  certify  that  the  title 
to  lands  did  not  come  in  question  where  judgment  is 
rendered  for  the  defendant  on  the  merits  does  not  de- 
pend upon  the  formal  issue  made  by  the  pleadings,  but 
upon  whether  the  title  actually  did  come  in  question  on 
the  trial.  So,  where  the  plaintiff'  claimed  title  in  his 
declaration  in  an  action  for  trespass  for  cutting  trees 
upon  the  lands  of  the  plaintiff  and  the  defendant  pleaded 
title,  but  the  real  point  in  controversy  was  whether  the 

42  Jud.   Act,   ch.   69,   §  23 ;    Comp.  «  People  v.  Wayne  Circuit  Judge, 

Laws  1915,  §  14237.  14  Mich.  33. 

48Kinne  v.  Clever,   184  Mich.   61.  46  Gilbert    v.    Kennedy,    22    Mich. 

44 Jud.  Act,  ch.   69,   §25;    Comp.  5;     Cyc.    Law    Diet.    tit.    "Double 

Law8     1915,      §14239;      Kinne     v.  Costs." 
Clever,  184  Mich.  61;  Gay  v.  Hults, 
55  Mich.  327. 


§  13  Justices  of  the  Peace  1037 

plaintiff  gave  the  defendant  permission  to  cut  the  trees, 
the  court  properly  certified  that  the  title  to  lands  did  not 
come  in  question ;  *'^  but  where  the  title  is  not  only  put 
in  issue  by  the  pleadings,  but  is  involved  as  a  necessary 
element  in  the  proofs,  a  certificate  that  the  title  did  not 
come  in  question  will  be  vacated  ])y  tlie  supreme  court 
on  writ  of  error.*^ 

§  12.  Proceedings  where  only  part  of  cause  affects  title. 
If  the  plaintiff's  declaration  in  a  suit  before  a  justice 
contains  several  counts  or  causes  of  action,  to  one  or 
more  of  which  a  defense  bringing  in  question  the  title 
of  lands  is  interposed  by  the  defendant,  it  is  the  duty  of 
the  justice  to  discontinue  the  proceedings  for  such  cause 
of  action,  and,  for  the  other  causes  of  action,  to  continue 
his  proceedings.*^ 

III.  Filing-  Transcript  of  Justice's  Judgment  in  Circuit 

Court 

§  13.  Proceedings  to  obtain  a  transcript. 

Whenever  an  execution  may  by  law  ])e  issued  upon  any 
judgment  rendered  by  a  justice  of  the  peaoe  for  twenty 
dollars  or  over,  exclusive  of  costs,  the  party  in  whose 
fiivor  the  judgment  has  been  rendered,  his  executor,  ad- 
ministrator or  assignee,  or  the  attorney  of  either  of  the 
parties,  may  make  and  deliver  to  the  justice  of  the  peace 
liaving  control  of  the  judgment  an  affidavit  setting  forth 
in  substjince  that  tlie  deponent  knows,  or  lias  good  reason 
to  believe  and  does  believe,  that  lliere  are  not  sufficient 
goods  and  chattels  liable  to  execution  to  satisfy  the  judg- 
ment within  the  county  in  which  it  was  rendered,  belong- 
ing to  the  person  or  persons  against  whom  such  execution 

47Dolahanty   v.    I.iifey,   ini    Mk-h.  Tiay  v.   Hiilts,  f);!  Mich.  :;'27. 

li:!;    Nowcoinho   v.   Irwin,   Hf)   Mi<'li.  49, hid.    Act,   cli.   (iH,    S2fi;    Clomp. 

(i2n.  Laws  Ifllf),  ij  14240. 

48  LahoMii  V.  Lahpaii,  HI  Midi.  81  ; 


1038  Justices  of  the  Peace  §  13 

may  issue;  and  thereupon  it  becomes  the  duty  of  the 
justice  of  the  peace  having-  the  control  of  the  judgment, 
rendered  by  himself  or  any  other  justice,  on  the  demand 
of  any  person  in  whose  favor  it  has  been  rendered,  his 
assignee  or  the  attorney  of  either  of  the  parties,  to  give 
a  certified  transcript  of  the  judgment  and  of  tlie  proceed- 
ings in  the  case,  so  far  as  they  appear  upon  the  docket, 
and  the  original  affidavit  mentioned.*" 

The  removal  of  a  justice's  judgment  by  transcript  to 
the  circuit  court  is  a  statutory  ex  parte  proceeding,  and 
a  strict  compliance  with  the  statutory  requisites  is  es- 
sential to  its  validity.*^  Thus,  if  the  transcript  be  filed 
before  execution  miglit  by  law  have  been  issued  by  the 
justice,  it  will  be  invalid,*^ 

§  14.  Affidavit  to  be  delivered  to  justice. 

Tlie  affidavit  is  a  jurisdictional  requirement."  It  may 
lie  made  by  any  duly  authorized  attorney  of  the  party, 
whether  he  appeared  for  the  party  before  the  justice  or 
not."  It  is  not  necessary  that  this  affidavit  should  state 
the  amount  for  which  the  judgment  was  originally  ren- 
dered," or  the  amount  due  upon  it,*^  but  it  must  identify 
the  judgment  by  means  of  the  title  of  the  court  and  of 
the  cause  and  by  such  other  specifications  as  will  be  ade- 
quate for  the  purpose.  An  affidavit  which  refers  to  the 
judgment  by  the  title  of  the  coui't  and  the  cause,  but 
gives  as  the  date  upon  which  it  was  rendered  a  different 
date  from  that  upon  which  the  judgment  transcribed  was 

SO.Tiul.    Act,   ch.   71,    SIO;    Comp.  53  Doty  v.  Doxtor,  61   Mieli.  348. 

I.aws  lOl.'),  §14281.  Siiffieieney  as  to  venue,  names  of 

51  .Towctt  V.  Bennett,  '^  Mieh.  198;  j.aities,  etc.,  see  Hawkins  v.  Casten- 

Pec-k    V.    Cavell,    16    Mich.   9;    Mon-  holz,   171   Mirh.  8.5. 
aphan    v.   McKinimie,  .32   Mich.   40;  54  Beikery      v.      Wayne      Circuit 

O'Brien    v.    O'Brien,   42   Mich.    M;  .Tud<?o,  82  Mich.   160. 
Doty  V.  Dexter,  61  Mich.  348.  55T),.iiver    v.    Connolly,    92    Mich. 

62  O'Brien    v.    O'Brien,    42    Mich.  ,'")49. 
1.');   Vrornan   v.   Tlionijison,  42  Midi.  56  Smith     v.     St.     .Joseph     Circuit 

14.'>.  .Tudgp,  46   Mich.   .'{38. 


§  14  Justices  of  the  Peace  103'J 

rendered,  cannot  be  said  to  identity  the  latter,  as  there 
is  no  conclusive  presumption  that  only  one  judgment  was 
rendered  in  that  court  between  the  same  i)arties;  ^^  but 
merely  clerical  errors  whicli  are  not  misleading  will  bo 
disregarded.®^ 

It  is  not  necessary  that  an  execution  should  be  issued 
by  the  justice  and  returned  unsatisfied  before  a  tran- 
script can  be  tiled,  and  the  affidavit,  therefore,  need  not 
show  it.®' 

The  affidavit  should  be  signed  by  the  affiant,  but,  where 
it  is  unsigned,  it  will  nevertheless  be  valid  if  it  has  been 
properly  sworn  to.^° 


Form  of  Affidavit  to  Obtain  Transcript  of  Judgment  of  Justice  of  the 
Peace  to  File  in  Circuit  Ctourt 


State  of  Michigan,  1 
County  of I 


A.  B.    ] 

vs.       I 
C.    D.   J 


In  Justice  Court,  before  J.  P.,  a  Justice 
of  the  Peace  for  the  Township  (or,  City) 
of ,  in  said  County. 


A.  B.,  the  above-named  plaintiff,  being  duly  sworn,  deposes  and  says 
that  he  knows  (or,  has  good  reason  to  believe,  and  does  believe)  that  there 
are  not  sufficient  goods  and  chattels,  liable  to  execution,  to  satisfy  the 
judgment  rendered  in  favor  of  the  said  plaintiff  in  this  cause,  within  the 

said  county  of   (the  county  in  which   the  judgment  was  rendered), 

belonging  to  the  said  C.  D.  or  to  any  other  person  or  persons  against  whom 
execution  upon  said  judgment  may  issue. 

A.  B. 

Subscribed,  etc. 

57  Denver  v.  Connolly,  92  Mich.  Shepard  v.  Schrutt,  163  Mich.  485. 
549.  60  Merrick    v.    Mayhue,    40    Mich. 

58  Hawkins     v.     Castenholz,     171       196. 

Mich.  85;  Berkery  v.  Wayne  Circuit  The  same  was  held  as  to  an  aflS- 

Judge,    82    Mich.    160;    Frohlieh    v,  davit   for   an   appeal   from   justice's 

Mitchell,  132  Mich.  432.  court,   in    People    v.    Simondson,    23 

59  Udell   V.   Kahn,   31   Mich.   195;  Mich.  113. 


1040  Justices  of  the  Peace  §  15 

§  15.  Requisites  of  transcript. 

The  transcript,  if  properly  certified,  will  be  sutHcieiit 
if  it  corresponds  with  the  docket  of  the  justice;®^  but  a 
certificate  to  the  transcript  in  compliance  with  the  statu- 
tory requirements  is  a  jurisdictional  essential,  and,  if 
the  transcript  be  not  officially  certified,  it  will  be  fatally 
defective.  The  mere  appearance  of  the  name  of  the  jus- 
tice in  the  body  of  the  certificate  is  not  sufficient.^^  The 
statute  makes  it  the  duty  of  the  justice  to  certify  both 
the  judgment  and  the  proceedings  in  the  case.  Not  only 
must  the  certificate  conform  to  the  requirements  of  the 
law  in  this  respect,  but  it  should  affirmatively  show  what 
judgment  and  proceedings  it  certifies,  as  well  as  where 
such  judgment  remains  or  is  to  be  found,  so  that  it  may 
appear  from  such  certificate  that  such  judgment  and  pro- 
ceedings were  transcribed  from  his  docket  and  the  judg- 
ment was  rendered  by  him,  or,  in  case  it  is  a  transcript 
of  a  judgment  rendered  by  another  justice  of  whose 
docket  the  certifying  justice  has  the  custody,  that  it  is  a 
transcript  of  the  judgment  and  proceedings  from  the 
docket  of  such  other  justice  then  in  his  custody.^' 

§  16.  Affidavit  of  amount  due,  filing  of  transcript  and 
entry  of  judgment. 
If  the  plaintiff,  his  assignee  or  the  agent  or  attorney 
of  either  of  the  parties,  make  an  affidavit  stating  the 
amount  due  upon  the  judgment,  it  is  the  duty  of  the  clerk 
of  the  circuit  court  for  the  county  in  w'hich  the  judgment 
was  rendered  to  file  the  transcrij^t  in  his  office  when 
re(iuestcd,  and  to  enter  and  docket  the  judgment  in  a 
book  to  be  kept  by  him  for  that  purpose,  noting  therein 

61  Udell   V.   Kahn,   .31   Mich.    195;  Transcript  must  show  jurisdiction 
Pock  V.  Cavcll,  16  Mich.  11.  of  justice.    Wedel  v.  Green,  70  Mich. 

62  Bigclow     V.     Booth,     39     Mich.  642. 
622. 

63,Jcwctt  V.  Bennett,  3  Mich.  198; 
Peck  V.  Cavell,  16  Mich.  9. 


§  16  Justices  of  the  Peace  1041 

the  time  ol"  receiving  it  and  the  amount  sworn  to  be  due.^* 
The  act  of  the  clerk  is  a  mere  ministerial  one.®'' 

The  statute  contemplates  that  the  affidavit  stating  the 
amount  due  upon  the  judgment  shall  be  a  distinct  affi- 
davit from  that  required  to  be  delivered  to  the  justice 
preliminary^  to  his  giving  a  certified  transcript,  but,  where 
the  latter  states  the  amount  due,  and  the  transcript  is 
filed  with  no  material  delay  after  such  affidavit  is  made, 
no  other  affidavit  is  necessary.^®  A  showing  of  the 
amount  due  is  a  jurisdictional  prerequisite  to  the  filing 
of  the  transcript,  but  it  may  as  well  be  shown  in  the  first 
affidavit  as  in  a  separate  one.®'''  There  must  not,  however, 
be  such  an  interval  between  the  making  of  the  affidavit 
setting  forth  the  amount  due  and  the  filing  of  the  tran- 
script as  to  permit  the  presumption  that  since  tlie  affi- 
davit was  made,  and  before  the  filing,  any  payments  have 
been  made.  Where,  therefore,  a  period  of  eleven  days 
elapsed  from  the  making  of  the  affidavit  before  the  filing 
of  the  transcript,  it  was  held  that  the  transcript  could 
not  be  filed  without  another  affidavit  showing  the  amount 
due.®^  And,  when  the  period  which  had  so  elapsed  was 
eight  days,  it  was  said  that  there  was  ample  time  in 
which  the  judgment  might  have  been  paid  in  whole  or  in 
part,  and  that  a  separate  affidavit  was  necessary,®'  but, 
where  the  transcript  was  filed  within  three  days,  the 
court  did  not  characterize  the  delay  as  substantial,'*  and 
likewise,  of  course,  where  it  was  filed  wdthin  tw^o  days.'^ 

64Jud.   Act,   eh.    71,    §11;    Conip.  39   Mich.   622,   for   dictum    that   the 

Laws  1915,  §  14282.  separate    affidavit    is    jurisdictional, 

Sufficiency  of  affidavit  as  to  venue  irrespective    of    the    time    when    the 

and  names  of  parties,  see  Hawkins  transcript  is  filed. 
V.  Castenholz,  171   Mich.  85.  68  Berkery      v.      Wayne      Circuit 

65  Rliepard    v.    Schrutt,    lfi:5    Mich.  .Tiid<je,  82  Mich.  160. 

485;  Wilcox  v.  Lantz,  107  Mich.  1.  69  Bigolow  v.  Booth,  :59  Mich.  622, 

66  Udell  v.  Kahn,  :U  Mich.  195.  70  Udell  v.  Kahn,  .'il  Mich.  195. 

67  Udell  V.  Kahn,  31  Mich,  195;  71  Shepard  v,  Schrutt,  163  Mich. 
Smith  V.  St.  Joseph  Circuit  Judge,  485. 

46  Mich.  338.    See  Bigelow  v.  Bootli, 
1   Abbott— 66 


1042  Justices  of  the  Peace  §  16 

ir  tlit'su  allidavits  are  insufficient  to  confer  jurisdic- 
tion,— the  one  upon  the  justice  to  certify  his  transcript, 
and  the  other  upon  the  clerk  to  file  the  transcript  and  en- 
ter judgment, — jurisdiction  cannot  be  conferred  by  sub- 
stituting sufficient  affidavits  nunc  pro  tunc.  Tlie  ques- 
tion of  jurisdiction  must  be  determined  upon  the  valid- 
ity of  the  affidavits  filed  with  the  transcript.''^ 

Form  of  Affidavit  on  Filing  Transcript  of  Justice's  Judgment 


State  of  Michigan,  ) 
County  of  ( 


In  Justice  Court,  before  J.  P.,  a  Justice 
of  the  Peace  for  the  Township  (or,  City) 
of ,  in  said  County. 


A.  B.,   the  above-naniecl  plaintiff,   being   duly  sworn,  deposes  and  says 

that,   upon    the   judgment   rendered    in   this   cause   on   the    day   of 

,  A.  D ,  in  favor  of  the  said  plaintiff,  there  is  now  due  the 

sum  of    dollars,  damages,  and    dollars,  taxed  costs. 

A.  B. 

Subscribed,  etc. 

§  17.  Effect  of  docketed  transcript. 

When  the  transcript  of  a  justice's  judgment  is  duly 
filed  and  docketed  in  the  circuit  court,  the  statute  de- 
clares that  it  shall  have  the  same  effect  as  a  judgment 
rendered  in  the  circuit  court,  and  may,  in  the  same  man- 
ner, be  enforced,  discharged  and  canceled,  and  that  exe- 
cution may  bo  issued  thereon  against  both  the  surety  and 
the  person  against  whom  the  judgment  was  rendered, 
or  either  of  them,  in  the  same  manner  as  if  execution 
were  to  be  issued  by  the  justice.''^^ 

The  record  in  the  circuit  court  of  a  transcribed  judg- 
ment must  not  only  show  that  the  statutory  requirements 

72Berkery      v.      Wayne      Circuit  73  Jud.    Act,   ch.   71,    S12;    Comp. 

Judge,  82  Mich.   160;   Monaghan   v.       Laws  1915,  §  1428o. 
McKimmie,  32  Mich.  40. 


§  17  Justices  of  the  Peace  1043 

for  the  removal  of  the  judgment  from  the  justice  to  the 
circuit  court  have  been  complied  with,  but  it  must  show 
that  the  justice  had  jurisdiction  to  render  the  judgment 
which  he  did  render.  Where,  therefore,  the  transcript 
fails  to  show  that  there  was  any  proper  service  of  proc- 
ess upon  the  defendant,  and  the  defendant  did  not  ap- 
pear in  the  case  in  the  justice's  court,  the  transcribed 
judgment  in  the  circuit  court  is  jurisdictionally  defec- 
tive, and  proof  of  jurisdictional  facts  cannot  be  made 
to  aid  the  defective  record.'''* 

Whenever  a  transcript  of  a  judgment  rendered  by  a 
justice  of  the  peace  has  been  filed  and  docketed  by  the 
clerk  of  the  circuit  court,  all  executions  thereon  must  be 
issued  out  of  and  under  the  seal  of  the  circuit  court  and 
be  in  the  same  form,  as  near  as  may  be,  as  other  execu- 
tions issued  out  of  the  circuit  court. ''^^ 

So  effectually  does  the  judgment,  when  transcribed  and 
docketed  in  tlie  circuit  court,  become  a  judgment  of  the 
circuit  court  and  cease  to  be  a  judgment  in  justice's  court, 
that  the  circuit  court,  after  the  transcript  is  filed,  has  no 
power  to  allow  an  appeal  from  the  judgment  of  the  jus- 
tice.'''^ And  although  an  action  upon  a  justice's  judgment 
is  barred  after  six  years,  yet,  when  such  judgment  has 
been  transcribed  and  docketed  in  the  circuit  court,  it 
stands  in  the  same  position  as  if  it  were  an  original 
judgment  of  the  circuit  court,  upon  wliich  action  may  be 
brought  at  any  time  witliin  ten  years  ''^  from  the  date  of 
the  rendition  of  the  judgment  by  the  justice.''*  And  the 
filing  of  a  transcript  of  a  justice's  judgment  so  divests 

TlWedel  v.  Groon,  70  Mich.  642;  tion    tlioreon   does   not   procliule   the 

Denver  v.   Connelly,  92   Mieh.  .')4fl.  reinstatement    of    the    appeal,    he- 

76  Jud.    Act,    ch.    2?>,    §2;    Comj).  cause  this  does  not  require  any  ac- 

Laws     1915,     §12817;      Wilcox     v.  tion  on  the  ]iart  of  the  justice.     Al- 

Lantz,  107  Mich.  1.  drich    v.    Clinton    Circuit   Judge,   49 

76  Davison  v.  Elliott,  9  Mich.  2r)2.  Mich.  609. 

But  where  an  appeal  has  been  im-  77  Arnold   v.    Thompson,   19   Mich, 

properly   dismissed,   the   filin<r   of   a  .■;.'!.">;   Cole  v.  Potter,  !.'}.'>  Mich.  ,120. 

transcript  and  issuing  of  an  oxecu  78  Wilcox  v.  Lantz,  107  Mich.  1. 


1044  Justices  of  the  Peace  §  17 

the  justice  of  jurisdiction  of  the  case  as  to  preclude  the 
judgment  debtor  from  thereafter  entering  a  stay  of  exe- 
cution with  the  justice;'^  but  it  was  held  that  a  judg- 
ment so  docketed  in  the  circuit  court  was  not  a  judgment 
''rendered"  in  such  court,  within  the  meaning  of  the 
statute  authorizing  process  in  garnishment  to  be  issued 
after  judgment  "in  all  personal  actions  arising  upon 
contract,  express  or  implied,  brought  in  the  several  cir- 
cuit courts  or  municipal  courts  of  civil  jurisdiction,"  and 
on  "any  judgment  or  decree  rendered  in  any  of  the  sev- 
eral courts  hereinbefore  mentioned."  ®®  Now,  however, 
the  statute  expressly  provides  that  a  writ  of  garnish- 
ment may  issue  at  any  time  after  the  filing  of  a  transcript 
of  judgment.*^ 

§  18.  Nature  of  proceeding. 

A  transcript  of  judgment  properly  certified,  filed  and 
docketed  renders  the  judgment  a  judgment  of  a  court 
of  record  from  the  time  of  such  filing  and  docketing,  thus 
changing  in  some  degree  its  nature,  and  very  materially 
the  rights,  powers  and  liabilities  of  the  parties  to  it;  and 
the  peculiarity  of  this  fact  is  that  such  a  result  is  not 
brought  about  by  the  action  of  one  court  upon  the  other, 
but  by  the  direct  act  of  the  judgment  creditor  without 
notice  to,  or  the  consent  of,  the  party  to  be  affected  by  it, 
and  without  his  participation  in  the  proceedings  at  all. 
Under  such  ex  parte  proceedings,  to  be  followed  by  such 
unusual  consequences,  justice  and  the  protection  of  par- 
ties, as  well  as  law,  require  a  strict  compliance  with  the 
provisions  of  the  statute  before  they  can  be  made  avail- 
able to  remove  the  judgment,  convert  it  into  a  judgment 
of  the  circuit  court  and  throw  about  it  the  sanctions,  and 

70  Hitchcock     v.     Wayne     Circuit  81  .Tud.    Act,    ch.    28,    §  1 ;    Comp. 

Judge,  96  Mich.   297.  T.aws   191;'),   §1:^.122. 

80  Weimeister  v.  Singer,  44  Mich. 
4nfi. 


§  20  Justices  of  the  Peace  1045 

attach  to  it  the  remedies,  of  a  court  of  general  jurisdic- 
tion.'^ 

§  19.  How  proceedings  may  be  reviewed. 

The  proceedings  may  be  attacked  by  motion  to  dismiss 
made  in  the  circuit  court  and  the  order  of  the  court  on 
such  motion  may  be  reviewed  by  the  supreme  court  by 
certiorari.'^  The  proceedings  cannot  be  reviewed  on 
writ  of  error.'*    They  cannot  be  attacked  collaterally." 

IV.  Certiorari  to  Justices  of  the  Peace 

§  20.  When  writ  lies. 

It  is  provided  by  statute  that,  in  all  cases  of  judg- 
ments rendered  by  a  justice  of  the  peace,  whether  issue 
was  joined  before  the  justice  or  not,  either  party  may 
remove  the  judgment  by  a  writ  of  certiorari  into  the  cir- 
cuit court  for  the  county  in  which  the  judgment  was 
rendered.'^  This  statutory  writ  of  certiorari  is  special, 
and  the  proceedings  to  obtain  a  review  by  this  process 
must  be  strictly  complied  with.''' 

The  purpose  of  the  statute  is  to  compel  a  party  who 
wishes  to  adopt  the  remedy  by  certiorari  to  proceed  sea- 
sonably and  to  avoid  the  long  delay  which  was  often  in- 

82  Jewett  V.  Bennett,  3  Mich.  198;  A  writ  of  certiorari  is  a  writ  by 

Wedel    V.     Green,     70    Mich,     642;  which    the    record    of   a    proceeding 

O'Brien   v.   O'Brien,   42   Mich.    15;  in  a  lower  court  is  removed  into  a 

Berkery    v.    Wayne    Circuit    Judge,  higher  court   for   review,   and   is   so 

82    Mich.    160;    Peck   v.    Cavell,    16  called  from  the  emphatic  word  in  the 

Mich.  9;   Doty  v.  Dexter,  61   Mich.  Latin  writ  which  reads,  "quia  certis 

348;  Vroman  v.  Thompson,  42  Mich.  de  causis  certiorari  volumus,"  that 

145;    Monaghan    v.    McKimmie,    32  is,   for  as  much  as   concerning  cer- 

Mich.  40.  tain    causes    we    (i.    e.,    the    higher 

88  Wedel  V.  Green,  70  Mich.  642.  court,)    wish   to   be   certified    (certi- 

84  Townsend    v.    Tudor,    41    Mich.  orari).     And.  Law  Diet.  tit.     "Cer- 

263;   West  v.  Parkinson,  130  Mich.  tiorari";  Cyc.  Law  Diet.  tit.  "Certi- 

401.  orari."     See  also  Certiorari. 

86  Cole  V.  Potter,  135  Mich.  326.  87  Sherwood   v.   Arnold,   80   Mich. 

86Jud.   Act,  ch.   78,   §22;    Comp.  270. 
Laws  1915,  §14422, 


1046  Justices  of  the  Peace  §  20 

cident  to  the  use  of  the  writ  of  certiorari  under  the  com- 
mon htw  practice.  Consequently  the  common  hwv  writ 
cannot  be  used  in  any  case  where  the  statutory  writ  is 
capable  of  application  and  the  aggrieved  partj'^  has  an 
opportunity  of  proceeding  under  the  statute."  But 
where  he  had  no  knowledge  of  the  suit  until  it  was  too 
late  for  him  to  proceed  under  the  statute  and  thus  liad 
no  opportunity  to  proceed  under  it,  the  common  law  writ 
may  issue  to  prevent  a  miscarriage  of  justice.*^ 

§  21.  Notice  and  affidavit. 

A  party  intending  to  apply  for  a  writ  of  certiorari 
must,  within  five  days  after  the  rendition  of  the  judg- 
ment, give  the  justice  notice  in  writing  of  liis  intention 
of  removing  the  cause  to  the  circuit  court  by  certiorari, 
and,  within  ten  days,  must  make  or  cause  to  be  made  an 
affidavit  setting  forth  the  substance  of  the  testimony  and 
proceedings  before  the  justice  and  the  grounds  upon 
which  an  allegation  of  error  is  founded.®" 

Where  the  affidavit  is  not  made  by  the  party  himself, 
but  by  an  attorney  of  the  court  who  has  had  charge  of 
the  proceedings  throughout,  the  omission  of  a  statement 
in  the  affidavit  that  the  affiant  makes  it  as  the  agent  or 
attorney  of  the  party  does  not  render  the  affidavit  in- 
sufficient.®^ 

An  affidavit  for  a  writ  of  certiorari  should  be  prepared 
with  groat  care.  It  is  incumbent  on  the  moving  party 
in  certiorari  to  make  out  a  clear  case,  and  see  that,  in 
seeking  to  avail  himself  of  a  remedy  which  may  have  the 

88  Jacobs  v.  Wayne  Circuit  .Tn(l<>e,  son  v.  Crockery  Scliool  District,  25 
i;i2  Mich.  r)5.  Mich.  48:!. 

89  Jacobs  V.  Wayne  Circuit  Juclorp,  90Jnd.  Act,  ch.  78,  §2;i;  Conip. 
l.!2  Mich.  55;  Kroop  v.  Fonnan,  31  Laws  1915,  §14423. 

Mich.    144;     Withington    v.    South-  Before   Judicature    Act,    time    for 

worth,    26    M)ieh.    381 ;     Adams    v.  affidavit   was  thirty  days. 

Abram,    38    Mich.    302;     White    v.  91  Sciiofield    v.    Cahooii,    31    Mich. 

Boyce,    88    Mich.    349;     Wilson    v.  206;  Forbes  Lithograph  Mfg.  Co.  v. 

Bartholomew,  45  Mich.  41;    Tlioin].-  Winter,    107    Midi.    116. 


§  21  Justices  of  the  Peace  1047 

effect  of  ciiitiug'  off  his  adversary's  entire  claim,  he 
stands  ui)on  a  clear  and  unquestionable  foundation.®'^ 
While  undoubtedly  a  party  has  a  right  to  resort  to  cer- 
tiorari if  he  chooses,  yet,  if  he  does,  he  must  do  so  at  the 
risk  of  failing  to  "hit  the  bird  in  the  eye,"  and  at  the 
risk  of  losing  a  trial  on  the  merits  in  case  of  such  fail- 
ure.'^ Nothing  will  be  taken  by  intendment  in  favor  of 
the  errors  assigned.®*  It  is,  therefore,  essential  that  he 
point  out  in  his  affidavit  wherein  the  justice  erred  in 
matter  of  law\®^  The  allegations  of  error  must  be  so 
specific  as  to  inform  the  court  and  the  opposite  party  of 
the  precise  questions  intended  to  be  raised.  Errors  not 
so  alleged  will  not  be  considered.®^  Accordingly,  an  al- 
legation that  the  justice  erred  in  rendering  judgment 
against  a  party  and  in  favor  of  his  adversary  will  raise 
no  question  except  whether  there  was  any  evidence  to 
support  the  judgment  of  the  justice.®'''  An  allegation 
"that  the  justice  erred  in  rendering  judgment  in  said 
cause  on  the  evidence  introduced  therein"  does  not  speci- 
fy the  alleged  error  with  sufficient  clearness  and  par- 
ticularity, and  raises  no  question  for  the  circuit  court  to 
review.®^ 

92  Marquette,  etc.,  Mill  Co.  V.  Mor-  Mich.  416;   Westbrook  v.  Blood,  50 

gan,   41    Mich.   296;    Kitter   v.   Dan-  Mich.   443;    Grand   Trunk  R.   Co.   v. 

iels,  47  Mich.  617.  Russ,  47  Mich.  500;   Witherspoon  v. 

93Stoll   V.    Padley,   98   Mich.    13;  Clegg,  42  Mich.  484;  Welch  v.  Bagg, 

Eldridge  v.  Hubbcll,  119  Mich.  61.  12    Mich.    41;    Gilmore    v.    Lichten- 

94  0'Hara    v.    Mernan,    79    Mich.  berg,  129  Mich.  275. 

222 ;    Howell   v.   Shepard,   48    Mich.  97  Parsons  v.  Dickinson,  23  Mich. 

474.  56;    Fowler  v.  Detroit,  etc.,  R.  Co., 

95  Parsons  v.  Dickinson,  23  Mich.       7  Mich.  79. 

56;  Rodman  V.  Clark,  81  Mich.  466;  98  Lake     Superior     Bldg.     Co.     v. 

McGraw    v.    Schwab,    23    Mich.    13;  Thompson,   32  Mich.   293.     See  also 

Fowler    v.    Detroit,    etc.,    R.    Co.,    7  Welch  v.  Bagg,  12  Mich.  41,  where 

Mich.  79;  Witherspoon  v.  Clegg,  42  it  was  held  that  an  allegation  that 

Mich.  484;   Higley  v.  Lant,  3  Mich.  "there  was  no  evidence  to  sustain" 

612;    Drake    v.    International    Har-  the  verdict  and  .judgment  is  too  gen- 

vester  Co.,  150  Mich.  561;  Hatch  v.  eral  and  uncertain  to  challenge  the 

Christmas,  68  Mich.  84.  attention  of  the  court. 
9d  Matthews      v.     Forslund,      11.3 


1048  Justices  of  the  Peace  §  21 

Form    of  Notice  of  Intent  to  Remove  Cause  by  Certiorari 


State  of  Michigan,  ) 
County  of ( 


ss. 


In  Justice's  Court,  before  J.  P.,  a  Justice 

of  the  Peace  for  the  Township  of , 

in  said  County. 


Sir:— 

You  will  please  to  take  notice  that  C.  D.,  the  above-named  defendant, 

intends  to  remove  this  cause  to  the  circuit  court  for  the  county  of   

by  writ  of  certiorari. 

Dated,  etc. 

Yours,  etc., 

To  J.  P.,  Justice  of  the  Peace.  C.  D. 

Form  of  Affidavit  to  Remove  a  Judgment  from  a  Justice  of  the  Peace 
to  Circuit  Court  by  Certiorari 

State  of  Michigan,  1 
County  of  ( 

C.  D.,  being  duly  sworn,  deposes  and  says  (if  the  affidavit  is  made  by 
the  agent  or  attorney  of  the  party,  there  should  be  inserted  after  the  words, 
"deposes  and  says,"  the  following:  "That  he  is  the  agent  [or,  attorney] 
for  C.  D.,  the  defendant  hereinafter  mentioned,  and  makes  this  affidavit 

in  his  behalf ;  ")   that  on  the   day  of   ,  A.  D ,  a  suit 

was  commenced  against  the  said  C.  D.,  as  defendant,  by  A.  B.,  as  plaintiff, 

before  J.  P.,  a  justice  of  the  peace  for  the  township  (or,  city)  of , 

in  said  county,  by  summons  (or  as  the  case  may  be),  issued  by  said  justice 
of  the  peace  on  the  day  and  year  aforesaid,  and  made  returnable  at  the 

office  of  the  said  justice  in  said  township    (or,  city)    on  the    day 

of ,  A.  D ,  at 0  'clock  in  the noon ;  that,  at  the 

time  and  place  last  mentioned,  the  said  defendant,  C.  D.,  appeared  (or,  as 
the  case  may  be,  and  follow  with  a  statement  of  the  substance  of  the 
testimony,  if  any,  and  the  proceedings  before  the  justice,  including  the 
judgment). 

And  this  deponent  further  says  that  the  foregoing  is  the  substance  of  all 
the  testimony  given  upon  the  trial  of  said  suit  and  of  all  the  proceedings 
before  the  said  justice  therein. 

Deponent  further  says  that  in  the  proceedings  and  judgment  aforesaid 
there  is  manifest  error,  for  which  the  said  judgment  ought  to  be  reversed, 
in  this,  to  wit:  (Allege  specifically  the  error  or  errors  relied  upon  thus:  The 
said  justice  erred  in  permitting  the  said  A.  B.  to,  etc.) 

C.  D. 

Subscribed,  etc. 


§  23  Justices  of  the  Peace  1049 

§  22.  Allowance  of  writ. 

AVitliin  ten  days  after  the  rendition  of  judgment  by 
the  justice,  the  affidavit  must  be  presented  to  one  of  the 
circuit  judges  or  to  a  circuit  court  commissioner,  and, 
if  he  be  satisfied  that  an  error  has  been  committed  by 
the  justice  or  jury  in  the  proceedings,  verdict  or  judg- 
ment, it  is  his  duty  to  allow  the  certiorari  by  indorsing  his 
allowance  on  the  affidavit.®*  The  writ  is  never  a  mat- 
ter of  right,  and  can  issue  only  upon  satisfying  the  cir- 
cuit judge  or  circuit  court  commissioner  to  whom  the 
affidavit  has  been  presented  that  such  an  error  as  is 
reviewable  on  certiorari  has  been  committed.^ 

Form  of  Allowance  of  Certiorari  to  Be  Indorsed  on  Affidavit  by  Officer 

Allowing  Same 

Let  a  writ  of  certiorari  issue  out  of  the  circuit  court  for  the  county  of 
,  to  the  within-named  justice,  according  to  law. 

Dated,  etc. 

J.  a., 

Circuit  Judge  (or,  Circuit 
Court  Commissioner). 

§  23.  Issuing-  of  writ. 

The  affidavit,  after  the  allowance  of  the  certiorari  has 
been  indorsed  thereon,  and  within  five  days  after  the 
allowance,  must  be  filed  in  the  office  of  the  clerk  of  the 
circuit  court,  and  thereupon  a  writ  of  certiorari  will  be 
issued  forthwith  by  the  clerk. ^  If  the  writ  should  be 
issued  before  the  affidavit,  with  the  allowance  indorsed 

99  Jud.   Act,  ch.   78,   §24;    Comp.  tice    by    a    loss    of    remedies,    and 

Laws  1915,  §  14424;  Zook  v.  Blough,  should  not  be  encouraged  (Morrison 

42  Mich.  487.  v.  Emsley,  53  Mich.  564),  nor  where 

A  circuit  court  commissioner  of  a  the  defects  relied  on  are  not  such  as 

county  other  than  that  of  the  justice  reach   the  substance   of   the  eontro- 

has  authority  under  this  statute  to  versy  (Morrison  v.  Emsley,  5.*^  Mich, 

allow  the  writ.     Monroe  v.  Reynells,  564). 

131  Mich.  259.  1  Young  v.  Kelsey,  46  Mich.  414. 

The    writ    should    not    be    issued  2  Jud.    Act,    ch.    78,    §28;    Comp. 

where  a  reversal  might  destroy  jus-  Laws    1915,    §  14428. 


1050  Justices  of  the  Peace  §  23 

tlioreon,  is  so  filed,  the  cause  will  be  dismissed  by  the 
circuit  court  for  want  of  jurisdiction.^ 

Form  of  Writ  of  Certiorari  from  Circuit  Court  to  Justice  of  the  Peace 

The  Circ-uit  Couit  for  the  County  of 

In  the  Name  of  the  People  of  the  State  of  Michigan. 

To  J.  P.,  a  Justice  of  the  Peace  for  the  Township  of ,  in  said  County, 

Greeting: 

We,   being    willing,   for   certain   reasons,  that  the   circuit   court   for  the 

county  of should  be  certified  of  certain  proceedings  and  judgment 

rendered  lately  by  you  in  favor  of  A.  B.,  as  plaintiff,  and  against  C.  D.,  as 
defendant,   do   therefore   command   you   that  you   distinctly   certify   to   the 

circuit  court  for  the  county  of ,  on  the   day  of   next, 

all  and  singular  the  proceedings  and  judgment  aforesaid,  together  with  all 
things  concerning  the  same,  and  that  you  fully  and  truly  answer  to  all  the 
facts  set  forth  in  the  affidavit  upon  which  this  writ  is  allowed,  a  copy  of 
which  said  affidavit  is  hereto  annexed,  that  the  said  court  may  cause  to  be 
done  therein  what  of  right  ought  to  be  done.  Hereof  fail  not,  but  have  you 
then  and  there  this  writ,  with  your  return  thereon. 

Witness,  etc. 

§24.  Bond. 

The  party  obtaining  a  certiorari  is  required  to  ex- 
ecute to  the  opposite  party  a  bond,  witli  one  or  more 
sufficient  sureties,  to  be  approved  by  the  .iudge  or  com- 
missioner who  allowed  the  certiorari  or  by  the  justice 
who  rendered  the  judgment,  in  a  penalty  of  at  least 
fifty  dollars  where  the  whole  amount  of  the  judgment 
for  debt  or  damages  and  costs  does  not  exceed  twenty- 
five  dollars,  and,  where  the  judgment  for  the  debt  or 
damages  and  costs  exceeds  the  sum  of  twenty-five  dol- 
lars, tlien  the  penalty  of  the  bond  is  required  to  be  in 
double  the  amount  of  the  judgment,  if  the  judgment 
was  rendered  against  the  party  applying  for  the  cer- 
tiorari, conditioned  to  prosecute  the  certiorari  to  effect 
and  abide  the  judgment  of  the  circuit  court  therein  and 
pay  the  de])t  or  damages  and  costs  that  shall  be  awarded 
against  him.*    Tf  the  judgment  was  in  favor  of  the  per- 

3  PeojiJe    v.    Cass    Circuit    Judges,  4Jud.    Act,    ch.    78,    §25;    Comp. 

2  Doug.  116.  Laws  1915,  §  14425. 


§  24  Justices  of  the  Peace  1051 

soil  {ipplyiiig  for  the  certiorari,  the  bond  must  be  in  a 
penalty  of  at  least  fifty  dollars,  conditioned  to  pay  such 
costs  as  shall  Ix;  awarded  against  him  if  the  judgment 
is'aflirmed.^  But  the  party  procuring  the  certiorari  need 
not  execute  the  bond,  if  it  is  executed  by  two  or  more 
sureties.^ 

The  sulhciency  of  the  surety  or  sureties  upon  the  bond 
may  be  ai)proved  either  by  the  person  allowing  the  cer- 
tiorari or  by  the  justice  on  whose  judgment  the  cer- 
tiorari is  brought.  But  no  such  bond  can  be  approved 
unless  the  surety  or  sureties  thereto  justify  their  pecuni- 
ary responsibility  in  writing  and  under  oath,  which 
justification  must  be,  by  the  justice  or  the  person  allow- 
ing the  certiorari,  indorsed  on  the  bond,  or  the  respon- 
sibility of  the  surety  or  sureties  is  admitted  in  writing 
by  the  opposite  party  or  his  attorney  indorsed  on  the 
bond.''' 

Form  of  Bond  on  Certiorari  to  Justice  of  the  Peace 

Know  all  men  by  these  presents,  that  we,  C.  D.,  as  principal,  and  E.  F. 
and  G.  H.,  as  sureties,  are  held  and  firmly  bound  unto  A.  B.  in  the  sum  of 

dollars  (penalty  at  least  fifty  dollars,  when  the  whole  amount  of  the 

judgment  for  debt  or  damages  and  costs  does  not  exceed  twenty-five  dollars; 
otherwise,  double  the  amount  of  the  judgment,  if  judgment  was  against 
the  jjarty  procuring  the  certiorari),  to  be  paid  to  the  said  A.  B.,  or  to  his 
certain  attorney,  executors,  administrators  or  assigns,  for  which  payment, 
well  and  truly  to  be  made,  we  bind  ourselves,  our,  and  each  of  our,  heirs, 
executors  and  administrators,  jointly  and  severally,  firmly  by  these  presents. 

Sealed  witli  our  seals,  and  dated  the   day  of ,  in  the  year 

one  thousand  nine  hundred    

Whereas,  judgment   was  rendered  on  the    day  of    ,  A.  D. 

>  by  J.  P.,  a  justice  of  the  peace  for  the  township  (or,  city)  of , 

in  the  county  of ,  in  favor  of  the  said  A.  B.,  as  plaintiff,  and  against 

Liability   of   surety  on  bond   can-  5  Jud.    Act,    ch.    78,    §27;    Comp. 

not    be    extended    by    construction.  Laws   1915,   §  14427. 

Stoll    V.    Padley,    100    Mich.    404.  CJnd.    Act,    ch.    78,    §26;    Comp. 

Bond    as    dissolving    attachment.  Laws  lOl.l,  §  14426. 

see   Vanderhoof   v.    Prendorgast,   04  V.Tud.    Act,    ch.    78,    §26;    Comp. 

Mich.  18;  Treat  v.  Dunham,  74  Mich.  Laws   1915,   §  14426. 
114. 


1052  Justices  of  the  Peace  §  24 

the  said  C  D.,  as  defendant,  for  the  sum  of dollars,  damages,  and 

dollars,  costs  of  suit ; 

And  whereas  the  said  C.  D.  has  obtained  the  allowance  of  a  certiorari  to 

remove  the  said  jud<^mcnt  into  the  circuit  court  for  the  county  of   

aforesaid : 

Now,  the  condition  of  tliis  obligation  is  such  that  if  the  said  C.  D.  shall 

prosecute   said  certiorari   to   effect,   and   shall   abide   the   judgment   of  the 

said  circuit  court   therein,  and  shall  pay  the  damages  and  costs  that  shall 

be  awarded  against  him,  the  said  C  D.,  then  this  obligation  is  to  be  void; 

otherwise  of  full  force  and  effect. 

C.  D.  [L.  S.] 
E.  F.  [L.  S.] 
G.  H.  [L.  S.] 
(The  above  bond  may  be  executed  by   the  appellant  with  one  or  more 

sufficient    sureties,    or    by    two    or    more    sufficient    sureties    without    the 

appellant.) 

State  of  Micliigan,  | 
County  of   ( 

E.  F.  and  G.  H.,  the  sureties  in  the  foregoing  bond,  being  duly  sworn, 
each  for  himself  deposes  and  says  that  he  is  worth  in  unincumbered 
property,   not   exempt   from    execution   under   the   laws  of   this   state,   the 

sum    of    dollars,    after    payment    of    all    just    debts,    claims,    and 

liabilities. 

E.  F. 
G.  H. 
Subscribed,  etc. 

I  hereby  approve  of  E.  F.  and  G.  H.  as  sureties  in  the  foregoing  bond. 
Dated,  etc. 

J.  P., 
Justice  of   the  Peace    (or, 
Circuit  Judge,  or.  Circuit 
Court  Commissioner.) 

§  25.  Service  of  writ,  bond  and  affidavit  upon  the  justice. 
The  writ  of  certiorari  must,  within  five  days  after  it 
has  been  issued,  or  within  such  other  time  as  the  officer 
allowing  it  directs  at  the  time  of  allowing  it,  be  served 
upon  the  justice  by  whom  the  judgment  was  rendered, 
together  with  the  ])ond  given  and  a  copy  of  the  affidavit 
on  which  the  certiorari  was  allowed;  and  the  sum  of 
two  dollars  must  be  paid  to  the  justice  for  his  fees  for 
makiui'-  a  return  to  the  certiorari.    The  statute  declares 


§  27  Justices  of  the  Peace  1053 

that  no  certiorari  shall  be  of  any  effect  until  all  of  the 
preceding'  requisites  have  been  complied  with.'  The 
payment  of  the  fee  for  making  a  return,  however,  is  a 
matter  wdiich  concerns  the  justice  only,  and  he  may 
waive  it.' 

The  writ,  bond  and  affidavit  must  be  served  within 
the  time  limited  therefor,^"  and  it  cannot  be  served  on 
Sunday."  If  not  served  within  the  time  limited,  or  if 
served  on  Sunday,  the  writ  will  be  dismissed  by  the  cir- 
cuit court  upon  motion. 

§  26.  Effect  of  service  as  stay. 

If  the  certiorari,  bond  and  copy  of  the  tlffidavit  be 
served  on  the  justice  before  an  execution  has  been  is- 
sued, it  will  stay  the  issuing  of  the  execution.  If  execu- 
tion has  been  issued,  but  not  collected,  it  is  the  duty  of 
the  justice  to  grant  the  party  requiring  it  a  certificate 
of  the  issuing  of  the  certiorari,  which,  on  being  served 
on  the  officer  in  whose  hands  the  execution  may  be,  will 
suspend  the  execution. ^^  Likewise,  if  property  has  been 
seized  on  a  writ  of  attachment,  a  certiorari  issued  at 
the  instance  of  the  defendant  entitles  him  to  a  release 
of  the  property.^* 

§  27.  Return  to  writ. 

It  is  the  duty  of  the  justice,  before  the  return  day  of 
the  certiorari,  or  within  five  days  after  the  return  day 

8  Jud.  Act,  ell.  78,  §29;  Coiiip.  If  bond  not  served  in  time,  tlio 
Laws  1915,  §  14429.                                    justice   properly  refuses  to   make  a 

Where  a  writ  was  prepared  in  du-  return.    Sherwood  v.  Allegan  Circuit 

plicate  and  both  instruments  signed  Judge,  80  Mich.  270. 

and  sealed,  the  proceeding  was  not  11  Anderson  v.  Birce,  3  Mich,  280; 

invalidated    because    the    writ    first  Morrison  v.  Emsley,  53  Mich.  564. 

prepared    was    filed    with    the    clerk  12  Jud.   Act,   ch.   78,    §30;    Comp. 

and  the  copy  served  on   the  justice.  Laws  1915,  §  14430. 

Monroe  v.   Reynells,   131   Mich.  259.  W  Vanderhoof   v.   Prendergast,   94 

9  Anderson  v.  Birce,  3  Mich.  280.  Mich.  18. 

10  Morrison    v.    Emsley,    53    Mich. 
564. 


1054 


Justices  of  the  Peace 


§27 


of  the  certiorari,  or  within  five  days  alter  the  service 
of  tlic  certiorari,  to  make  return  thereto  in  writing,  attach 
to  his  return  the  certiorari,  the  bond  and  the  copy  of 
tlie  affidavit  upon  which  the  certiorari  was  allowed  and 
file  them  in  the  office  of  the  clerk  of  tlie  court  from 
which  the  writ  of  certiorari  issued." 

In  liis  return,  it  is  the  duty  of  the  justice  duly  and 
fully  to  answer  to  all  the  facts  set  forth  in  the  copy  of 
the  affidavit  on  which  the  certiorari  w^as  allowed,"  but 
he  is  required  to  make  return  only  to  the  matters  speci- 
fied in  the  affidavit.*^  As  to  such  matters,  the  return 
is  conclusive,  even  against  the  allegations  of  the  affida- 
vit," Where,  however,  the  return  conflicts  with  the  en- 
tries on  the  docket  of  the  justice,  the  return  will  pre- 
vail only  as  to  those  matters  which  the  statute  does  not 
require  the  justice  to  enter  upon  his  docket,  while,  as 
to  such  matters  as  the  statute  requires  him  to  enter,  the 
docket  will  control."  Also,  a  justice's  return  cannot 
aid  his  docket  or  remove  the  presumption  of  the  lan- 
guage of  the  entries  which  fail  to  sliow  that  the  justice 
had  jurisdiction  to  render  judgment  in  the  case.^' 


14Ju(l.  Act,  ch.  78,  §:!!;  Comp. 
Laws  1915,  §14431;  Monroe  v. 
Beynells,  131   Mich.  259. 

Before  Judicature  Act  time  was 
ten  days. 

The  justice  may  return  the  fact 
that  security  for  costs  was  filed  and 
send  up  the  undertaking.  McLean 
V.  IsVjell,  44  Mich.  129;  Monroe  v. 
Heintzman,  46   Mich.   12. 

The  return  must  show  jurisdiction 
of  the  justice  (Wight  v.  Warner, 
1  Doug.  384),  and  plaintiff  must  see 
to  it  that  it  is  complete  since  he 
cannot  prevail  on  a  doubtful  rec- 
ord (Beam  v.  Reynolds,  144  Mich. 
383). 

A  return  that  an  adjournment  on 
motion  by  plaintiff  was  against  oij- 


jection  implies  the  presence  of  de- 
fendant at  the  time  of  the  adjourn- 
ment. Beam  v.  Reynolds,  144  Mich. 
o83. 

15  Jud.  Act,  ch.  78,  §  31 ;  Comp. 
Laws  1915,   §  14431. 

16  Lake  Superior  Bldg.  Co.  v. 
Thompson,  32  Mich.  293. 

17  Rawson  v.  McElvaine,  49  Mich. 
194;  Galloway  v.  Corbitt,  52  Mich. 
460 ;  Wilder  v.  Chicago,  etc.,  R.  Co., 
70  Mich.  382;  People  v.  Hux,  68 
Mich.  477;  Ringelberg  v.  Peterson, 
76  Mich.  107;  Mann  v.  Tyler,  56 
Mich  564. 

18  Weaver  v.  Lammon,  62  Mich. 
366;  Oakley  v.  Dunn,  63  Mich. 
494;  Noyes  v.  Hillier,  65  Mich.  636. 

19  Moore   v.   Frederick,    197   Mich. 


§27 


Justices  of  the  Peace 


1055 


A  writ  of  certiorari  is  heard  exclusively  on  the  jus- 
tice's return.  The  affidavit  on  which  the  writ  was  al- 
lowed cannot  be  used  to  establish  eiTor.^"  The  justice's 
return  cannot  be  added  to  by  testimony  or  by  affidavits 
or  by  attached  papers  not  purporting  to  be  a  part  of 
tlie  return;  ^^  but  where  the  return  was  accompanied  by 
minutes,  signed  by  the  justice,  jiurporting  to  be  min- 
utes of  testimony,  giving  the  history  of  the  proceeding 
and  being  not  inconsistent  with  the  return,  but  only  a 
more  detailed  statement  in  some  respects,  the  minutes, 
having  been  removed  to  the  supreme  court  with  the  re- 
turn, were  considered  as  a  part  of  the  return.'^^ 

If  the  return  is  defective  in  any  respect,  the  party 
interested  in  supplying  the  defect  should  call  the  at- 


ilTS;  Noyes  v.  Hillier,  65  Mich.  636; 
King  V.  Bates,  80  Mich.  367;  Toliver 
V  ^Brownell,  94  Mich.  577 ;  Holmes 
V.  Cole,  95  Mich.  272;  Mudge  v. 
Yaples,  58  Mich.  307;  Waldron  v. 
Palmer,  104  Mich.  556;  Mitts  v. 
Harvey,  125  Mich.  354;  Weaver  v. 
Lammon,  62  Mich.  366. 

A  justice's  failure  to  keep  any 
record  of  jurisdictional  facts  is  fatal 
to  his  jurisdiction.  Davison  v.  Da- 
vison, 99  Mich.  625;  Kiiowles  &  Son 
V.  Cavanaugh,  144  Mich.  260;  Wells 
V.  United  States  Fidelity  &  Guar- 
anty Co.,  160  Mich.  213;  Tacoma  v. 
Nyenhuis,  194  Mich.  420;  Moore  v. 
Frederick,  197  Mich.  573. 

20  Knap  v.  Gamsby,  47  Mich.  375; 
Rawson  v.  McElvaine,  49  Mich.  194; 
Traverse  City,  etc.,  R.  Co.  v.  Sey- 
mour, 81  Mich.  378;  People  v.  Leav- 
itt,  41  Mich.  470;  Computing  Scale 
Co.  v.  Tripp,  138  Mich.  602;  Forbes 
Lithographing  Co.  v.  Winter,  107 
Mich.  116;  Young  v.  Kelsey,  46 
Mich.  414;  Alt  v.  Lalone,  54  Miih. 
302;  Nicolls  v.  Lawrence,  30  Mich. 
395;    Dooley    v.    Eilbert,    47    Mich. 


615;  People  v.  Hobson,  48  Mich.  27; 
MauH  V.  Tyler,  56  Mich.  564 ;  People 
V.  Etter,  72  Mich.  177;  Hinehman 
V.  Spaulding,  137  Mich.  655;  Lewis 
V.  Detroit  Board  of  Education,  139 
Mich.  307;  Wetmore  v.  Dean,  139 
Mich.  627;  Appleman  v.  Hahn,  149 
Mich.  245;  Henika  v.  Brown,  155 
Mich.  559;  People  v.  Grimm,  182 
Mich.  643. 

It  has  been  held  that  allegations 
in  the  affidavit  upon  which  a  com- 
mon law  writ  is  issued,  where  not 
denied  in  the  return  must  be  taken 
as  true  (Wilson  v.  Township  Board, 
87  Mich.  240),  but  this  rule  should 
not  be  extended  to  cases  where  the 
return,  although  not  in  so  many 
words  contradicting  the  affidavit, 
does  so  in  effect  (Computing  Scale 
Co.  V.   Tripp,   138  Mich.   602). 

21  Alt  V.  Lalone,  .54  Mich.  302; 
Powers  V.  Russell,  26  Mich.  179; 
Nortli  V.  Joslin,  59  Mich.  624.  See 
also  Bernstein  v.  Thayer,  157  Mich. 
625. 

22  McDougall  v.  Lamb,  113  Mich. 
(19. 


1056  Justices  of  the  Peace  §  27 

tcntion  of  the  justice  to  it  by  an  order  for  a  further  re- 
turn, which  the  court  will  usually  grant  on  motion  of 
the  party,^'  and  the  court  may  on  its  own  motion  order 
the  justice  to  make  a  further  return.^*  But  an  amended 
return  tiled  after  submissi(m  of  the  cause  to  the  court, 
and  without  an  order  of  court,  will  not  be  considered.^* 
The  statute  provides  that  the  court  may  compel  the 
justice  to  make  or  amend  his  return  by  rule,  attach- 
ment or  mandamus,  as  the  case  may  require. ^^  The 
action  of  the  court  in  compelling  or  refusing  to  compel 
the  amendment  of  a  return  is  within  the  scope  of  its 
discretionary  authority,  and  will  not  be  reviewed  by 
the  supreme  court  except  in  case  of  manifest  abuse.''' 

§  28.  Argnment  of  cause. 

When  the  return  of  the  justice  has  been  filed  with  the 
clerk,  the  cause  may  be  brought  on  for  argument  on  like 
notice  as  is  required  for  the  hearing  of  motions,  with- 
out any  assignment  or  joinder  in  error,  and  without 
furnishing  any  other  copy  or  copies  of  the  affidavit,  cer- 
tiorari and  return  to  the  court  or  the  opposite  party 
than  those  filed  with  the  clerk. ^*  The  allegations  of  the 
errors  complained  of  in  the  affidavit  operate  as  the  as- 
signments of  error.^* 

§  29.  What  will  be  reviewed. 

The  statute  provides  that  the  court  shall  proceed  to 
give  judgment  in  the  cause  as  the  right  of  the  matter 

23  Marquette,     etc.,    Mill     Co.     v.  27  Mann  v.  Tyler,  ;j6  Mich.  564. 
Morgan,  41  Mich.  296.                                     28  .Tud.   Act,   ch.   78,    §33;    Comp. 

Subsequent  return  cures  defects  in  Law.s  1915,  §  144.3.3;  Moore  v.  Fred- 
first  return.  Monroe  v.  Beynells,  erick,  197  Mich.  573 ;  Plefka  v.  De- 
131  Mich.  259.  troit   United   Ry.,   147   Mich.   641. 

24  Gordon  V.  Sibley,  59  Mich.  250 ;  29  Welch  v.  Bagg,  12  Mich.  41; 
Wight  V.  Warner,  1  Doug.  384.  Berry  v.  Lowe,  10  Mich.  9. 

25  Nelson  v.  Hillen,  164  Mich.  507. 
26Jud.    Act,   ch.   78,    S32;    Comp. 

Laws  1915,  §  14432. 


§  29  Justices  of  the  Peace  1057 

may  appear  without  regarding  technical  omissions,  im- 
perfections or  defects  in  the  proceedings  before  the  jus- 
tice which  did  not  affect  the  merits.^" 

Where  the  alleged  errors  of  the  justice  go  to  the  foun- 
dation of  the  action,  it  is  proper  to  review  them  on  cer- 
tiorari, but  where  they  occur  in  tlie  course  of  the  trial 
and  are  of  such  a  nature  that  they  can  be  obviated  on  a 
new  trial,  an  appeal  is  o])vi()usly  tlie  pi'oper  remedy. 
The  writ  of  certiorari  is  not  given  to  enable  parties  to 
have  a  technical  review  of  all  the  justice's  rulings,  ])ut 
to  afford  a  sjieedy  and  inexpensive  remedy  for  substan- 
tial faults.^^ 

Tlie  court  will  take  no  notice  of  any  error  of  the  jus- 
tice which  is  not  alleged  in  the  affidavit  for  the  writ. 
Any  error  not  so  specilied  cannot  be  considered.^^ 

It  has  already  been  observed  that  the  moving  party 
in  this  proceeding  nmst  ])ase  his  position  upon  a  clear 
and  unquestionable  foundation,  and  point  out  wherein 
the  justice  has  erred  in  matter  of  law.  It  has  also  been 
observed  to  what  extent  the  return  of  the  justice  is  con- 
clusive upon  what  occurred  in  the  proceedings  before 
him,  and  that  such  return  cannot  be  supplemented  by 
testimony,  the  affidavits  of  third  persons  or  the  like. 
It  is,  therefore,  obvious  that  the  error  which  the  moving- 
party  alleges  in  his  affidavit  must  be  made  to  appear 
to  the  court  by  means  of  the  return  of  the  justice.  Error 
cannot  be  presumed,  and  cannot  be  shown  by  any  in- 
strumentality other  than  the  return,  which,  for  the  pur- 
pose of  ascertaining  whether  any  alleged  erroi*  has  been 

30Jud.    Act,   ch.    78,    §:t4;    Comi).  50    Mich.   44.1;    Weloh    v.    Bagg,    12 

Laws  1915,  §  14434.  Mich.  41  ;  Matthews  v.  Forsluiul,  \U 

31  Erie  Preserving  Co.  v.  Wither-  Mich.  416;  Parsons  v.  Dickinson,  2;! 
spoon,  49  Mich.  .'}77;  Galloway  v.  Mich.  56;  Fowler  v.  Detroit,  etc., 
Corbitt,  r)2  Mich.  460;  Gray  V.  Will-  R.  Co.,  7  Mich.  79;  McGraw  v. 
cox,  .56  Mich.  ."j8.  Schwab,    23    Mich.    1.3;    Rodman    v. 

32  Witherspoon  v.  Clegg,  42  Mich.  Clark,  81  Mich.  466;  Stoll  v.  Padley, 
484;    Grand    Trunk   R.   Co.   v.   Russ,  9S  Midi.  1.!. 

47   Mich.   .100;    Westbrook   v.   Blood, 
1  Abbott— 67 


1058  Justices  of  the  Peace  §  29 

actually  committed,  must  be  regarded  as  the  exclusive 
repository  of  information.^^  A  judgment  will  not  be 
reversed  on  a  doubtful  record.^* 

On  certiorari,  the  circuit  court  will  consider  errors 
in  law  only.  It  will  not  weigh  the  evidence  or  inquire 
into  its  sufficiency,  except  to  ascertain  whether  there  is 
a  total  want  of  evidence  to  prove  some  fact  necessary 
to  sustain  the  judgment. ^^  If  there  is  such  a  total  want 
of  evidence,  the  court  will  reverse  the  judgment  as  a 
matter  of  law;^*  but  if,  on  the  other  hand,  there  is  any 
evidence  which,  if  believed,  would  sustain  the  judg- 
ment, it  matters  not  how  slight  it  is  or  how  convincing 
the  evidence  is  on  the  other  side,  the  court  cannot  re- 
verse the  judgment."  When  the  return  does  not  show 
that  the  whole  of  the  testimony  in  a  cause  has  been  re- 
turned, it  will  be  presumed  that  there  was  evidence  to 
sustain  the  finding  of  the  justice,  though  none  appears.^' 
The  court  cannot  presume  that  the  justice  did  not  have 
evidence  upon  all  essential  points,  unless  it  knows  that 
all  the  evidence  is  before  it,  or  unless  the  justice's  re- 

33  Dooloy  V.  Eilbert,  47  Mioh.  61  f);  36  Massachusetts  Bonding  &  Insiir- 

Forbes  Lithograph  Mfg.  Co.  v.  Win-  anee    Co.   v.   Park,    197    Mieh.   142; 

ter,     107     Mieh.     116;     Henika     v.  Chicago,   etc.,   R.   Co.   v.   Peters,  45 

Brown,  155  Mich.  559.  Mich.  6.'!6;   Bery  v.  Lowe,  10  Mich 

84  Beam    v.    Reynolds,    144    Mich.  9;   Bullock   v.   Ueberroth,  121  Mich. 

38.'}.  29:',;   Cicotte  v.  Morse,  8  Mich.  424; 

36  Berry    v.    Lowe,    10    Mich.    9;  Jackson  v.  People,  9  Mich.  Ill ;  Gar- 

Boyden  v.  Moore,  o5  Mich.  411 ;  Ov-  vin  v.  Gorman,  63  Mich.  221 ;  Hink- 

erpaek  v.  Ruggles,  27  Mich.  65;  Par-  ley  v.  Wcatherwax,  35  Mieh.  510. 

sons  V.  Dickinson,  23  Mich.  56;  Mc-  37  Welch    v.    Bagg,    12    Mich.   41; 

Graw     V.     Schwab,     23     Mich.     13;  Crawford  v.  Byrnes,  112  Mich.  599; 

Higley  v.  Lant,  3  Mich.  612;  Craw-  Mem    v.    Button,    116    Mich.    680; 

ford  V.  Byrnes,  112  Mich.  599;  Hyde  Locke  v.  Farley,  41  Mich.  405. 

V.   Nelson,   11    Mich.   353;    Welch   v  38  Snow  v.   Perkins,  2  Mich.  238; 

Bagg,  12  Mich.  41;  Linn  v.  Roberts  Gaines  v.   Betts,  2  Doug.  98;    Gray 

15  Mich.  443;   Overpack  v.  Ruggles,  v.  Willcox,  56  Mich.  58;   Rawson  v. 

27   Mich.   65;    Brown  v.   Blanehard,  McElvaine,  49  Mich.  194. 
39    Mieh.    790;     Schall    v.    Bly,    43 
Mich.  401  ;  Smoke  v.  .Tones,  35  Mich 
409. 


I  29  Justices  of  the  Peace  1059 

turn  affirmatively  shows  that  on  some  essential  point 
evidence  was  wanting.^' 

On  this  statutory  certiorari,  there  can  be  no  reversal 
of  the  judgment  of  the  justice,  unless  for  some  error 
which  affects  the  merits  as  the  case  finally  stands.*" 
Merely  technical  objections  will  not  be  given  any  weight 
unless  there  is  reason  to  believe  they  tended  to  a  wrong 
result.*^  While  the  erroneous  admission  of  evidence 
will  not  be  ground  for  reversal  on  certiorari,*'^  and  a  jus- 
tice's judgment  on  the  merits  will  not  be  reversed  for 
the  rejection  of  evidence  not  of  a  conclusive  character,*^ 
yet  where  the  justice  has  erroneously  rejected  evidence 
of  such  a  conclusive  character  that  it  would,  if  admitted, 
have  changed  tlie  result,  the  judgment  will  for  that  rea- 
son be  reversed.** 

Certiorari  is  the  proper  proceeding  to  get  rid  of  a  void 
judgment,**  or  where  the  plaintiff  has  brought  the 
wrong  form  of  action,*^  or  where  the  justice  has  (juashed 
the  plaintiff's  Avrit  of  replevin,*'  or  has  allowed  a  per- 
emptory challenge  to  a  jurp",*'  but  not  for  merely  tech- 

39  Marquette,  etc.,  Mill  Co.  v.  Mor-  on   the  ground  of   the  admission   of 

gan,  41  Midi.  296;  Sullivan  v.  Hall,  improper  evidence  to  establish  a  fact 

86   Mich.   7;    Rawson   v.   McElvaine,  which  is  clearly  proved  by  other  tes- 

49  Mich.  194.  timony    of    a    competent    character. 

40Hinman  v.  Eakins,  26  Midi.  80;  Aldrich  v.  Maitland,  4  Mich.  205. 

Hart   v.   Port   Huron   Tp.,   46   Mich.  44  Foster    v.    Watson,    153    Mich. 

428;  Burt  v.  Addison,  74  Mich.  7.30;  400;    Morrison   v.   Emsley,  53   Midi. 

Kees   V.   Maxim,   99   Mich.   493.  564. 

41  Cheney  v.  Russell,  44  Mich.  620;  45  Lake  Shore,  etc.,  R.  Co.  v.  Hunt, 
Gray  v.  Willcox,  56  Mich.  58;  Burn-  39  Mich.  469;  Hoben  v.  Citizens  Tel. 
ham  V.  Van  Gilder,  34  Mich.  246.  Co.,  176  Mich.  596;   Harbour  v.  El- 

42  Howell  v.  Shepard,  48  Mich.  dred,  107  Mich.  95 ;  Farrah  v.  Burs- 
472 ;  Grand  Trunk  R.  Co.  v.  Russ,  47  ley,  100  Mich.  547 ;  Scott  v.  Brown, 
Mich,  500;  Forbes  Lithograph  Mfg  175  Mich.  447. 

Co.  V.  Winter,  107  Mich.  116;   Mar-  46  Plefka   v.    Detroit    United    Ry., 

tin  V.  Smith,  108  Mich.  278.  147  Mich.  641. 

43  Erie  Preserving  Co.  v.  Wither  47  Proper  v.  Conkling,  67  Mich, 
spoon,    49    Mich.    377;    Whaley    v.  244. 

Gale,  48  Mich.  193.  48  Eldridgc  v.  Hubbdi.  119  Mich. 

A  judgment   will  not  be  reversed       61. 


1060  Justices  of  the  Peace  §  29 

iiieal  iriT^ulnritic'S  which  might  bo  oln'ialed  on  a  new 
trial,"  and  no  judgment  of  a  justice  can  be  reversed 
merely  for  tlie  omission  or  misrecital  of  an  oath,  or  on 
account  of  any  fees  having  l)een  imi)ioperly  allowed  by 
the  justice,  or  on  account  of  the  infonnality  or  insuffi- 
ciency of  any  bond  that  has  been  given  by  the  party 
bringing  the  certiorari,  ]n*ovided  another  bond,  to  be 
approved  by  the  court,  be  given  within  such  time  as  the 
court  directs. ^°  But  the  failui'e  of  the  i^laintiff's  attor- 
ney to  prove  liis  authority  to  ai)])ear  for  the  plaintiff, 
where  there  is  no  appearance  by  the  defendant,  is  not 
merely  the  omission  of  an  oath,  but  the  omission  of  a 
very  important  requirement  of  the  statute,  designed  for 
the  ]jrotection  of  the  parties  against  unauthorized  pro- 
ceedings, and  is,  therefore,  ground  for  the  reversal  of  the 
judgment. ^^  Unless,  however,  the  affidavit  for  the  writ 
and  the  return  show  such  failure,  it  will  be  presumed 
that  the  plaintiiT's  attorney  duly  proved  his  authority.*^ 
A  defendant  waives  notliing  of  a  jurisdictional  nature 
by  failing  to  appear  before  the  justice."  Hence,  the 
mere  fact  that  the  points  raised  in  the  affidavit  for  the 
writ  were  not  made  before  the  justice  does  not  render 
them  unavailable."  But  objections  which  do  not  go  to 
the  jurisdiction  of  the  justice,  if  not  made  before  the 
justice,  or  which  the  justice  was  never  given  an  oppor- 

49  Erie   Preserving  Co.  v.  Wither-  Lafliii  &  Raud  Powder  Co.,  44  Mich, 

spoon,    49    Mich.    377;    Galloway    v.  35;  Lagoo  v.  Seaman,  136  Mich.  418. 

Corbitt,  52  Mich.  460.  51  Scofiekl    v.    Cahoon,    31    Mich. 

60  Jud.   Act,   ch.    78,    ii  36 ;    Conip.  206.      See   also   Wilcox   v.   Lafliu   & 

Laws  1915,  S  14436;  Backus  v.  Bar-  Rand  Powder  Co.,  44  Mich.  35,  and 

ber,  107  Mich.  468.  Whelpley  v.  Nash,  46  Mich.  25,  as  to 

This    statute,    however,    does    not  matter   of   costs.      See   also   StoU   v. 

prevent  reversal  for  improper  allow-  Padley,  100  Mich.  404. 

ance  of  fees  by  the  justice  in  cases  52  Brown  v.  Knap,  137  Mich.  234. 

where    the    matter    of    costs    is    ex-  53  Campau   v.   Fairbanks,   1   Mich, 

pressly  governed  by  some  other  stat-  152;    Harbour  v.   Eldred,   107   Mich, 

ute  and  the  question  does  not  con-  95. 

cern    allowances    which    the    justice  54  Harbour   v.    Eldred,   107    Mich, 

had   power   to   consider.      Wilcox   v.  95. 


§  30  Justices  of  the  Peace  1061 

tmiity  to  examine  and  pass  upon,  or  which  were  so 
blindly  stated  that  the  point  made  in  error  failed  to  at- 
tract his  attention,  will  not  avail  to  effect  a  reversal." 

§30.  Judgment. 

The  statute  provides  that  the  court  may  affirm  or  re- 
verse the  judgment  in  whole  or  in  part.^^  There  can  be 
no  new  trial  on  the  merits  either  in  the  circuit  court  or 
in  the  justice's  court.  A  reversal  by  the  circuit  court 
of  the  judgment  which  the  plaintiff  obtained  in  justice's 
court  cuts  oft"  his  entire  claim." 

The  statute  in  terms  limits  the  power  of  the  circuit 
court  to  the  affirmance  or  reversal,  in  whole  or  in  part, 
of  the  judgment  which  the  justice  of  the  peace  rendered, 
and  does  not  purport  to  give  it  power  to  enter  any  other 
judgment.  Consequently,  the  circuit  court  should  not 
enter  a  judgment  for  the  costs  of  the  appellant  in  jus- 
tice's court  upon  reversing  the  judgment  of  the  jus- 
tice,*' because  that  would  be  a  new  and  independent 
judgment,  and,  for  the  same  reason,  it  has  been  held  that, 
upon  an  affirmance,  a  new  judgment  for  the  plaintiff's 
damages  and  costs  should  not  be  entered  in  the  circuit 
court,**  though  such  a  judgment  would  be  merely  a 
formal  error  for  which  the  judgment  would  not  be  re- 
versed in  the  supreme  court.^°     It  has,  however,  been 

65  Wilcox  V.  Toledo,  etc.,  R.  Co.,  ment  as  upon  other  judgments  ren- 
45  Mich.  280 ;  Hinniau  v.  Eakins,  26  dered  in  the  circuit  court.  Jud.  Act, 
Mich.  80;  Lake  Superior  Bldg.  Co.  ch.  78,  §34;  Comp.  Laws  1915, 
V.    Thompson,   32   Mich.   293;    Brad-  §14434. 

shaw  V.  McLaughlin,  39  Mich.  480;  67  Eitter  v.  Daniels,  47  Mich.  617; 

Thompson    v.    Ellsworth,    39    Mich.  Westbrook  v.  Blood,  50  Mich.  443; 

719;   Zimmer  v.  Davis,  35  Mich.  39;  Appleman  v.   Hahn,   149   Mich.   245. 

Hopkins    v.    Green,    93    Mich.    394;  See    also    Knack    v.    Wayne    Circuit 

Forbes  Lithographing  Co.  v.  Winter,  Judge,  147  Mich.  585. 

107  Mich.  116.  68  Berry  v.  Lowe,  10  Mich.  9. 

66  Jud.  Act,  ch.  78,  §34;  Comp.  59  Dooley  v,  Eilbert,  47  Mich.  615. 
Laws  1915,  §14434;  Burnham  v,  60  Rodman  v.  Clark,  81  Mich.  466; 
Van  Gilder,  34  Mich.  246.  Dooley  v.  Eilbert,  47  Mich.  615. 

Execution  may  issue  on  such  judg- 


1062  Justices  of  the  Peace  §  30 

recently  liekl  that,  on  such  an  affirmance,  the  phiintiff 
is  entitled  to  liave  a  new  judgment  entered  for  him  in 
the  circuit  court  to  include  all  that  was  awarded  to  him 
by  the  justice's  court,  in  the  form  of  a  judgment  for  the 
aggregate  of  the  damages,  costs  and  interest,^^  and  that 
such  judgment  may  include  the  sureties  on  the  appel- 
lant's bond.^*^  And  where  the  plaintiff  has  given  secu- 
rity for  costs  in  the  justice's  court,  the  circuit  court,  on 
reversing  a  judgment  which  he  has  recovered,  may  give 
judgment  for  the  costs  of  the  latter  court,  not  only 
against  the  plaintiff,  but  also  against  his  sureties  for 
costs.^^  In  case  a  new  judgment  is  entered  in  the  circuit 
court,  that  judgment  is  the  only  one  to  be  enforced,  the 
judgment  of  the  justice  being  considered  as  simply  af- 
lirmed  and  merged  therein.^* 

§31.  Costs. 

If  the  judgment  be  affirmed,  costs  will  be  awarded  to 
the  appellee;  if  it  be  reversed,  costs  will  be  awarded  to 
the  appellant;  if  the  judgment  be  affirmed  in  part,  the 
costs,  or  such  part  as  to  the  court  seems  just,  may  be 
awarded  to  either  party .^* 

§  32.  Restitution  of  money  collected. 

If  a  judgment  rendered  before  the  justice  has  been 
collected,  and  is  aftenvards  reversed,  the  court  will 
award  restitution  of  the  amount  so  collected,  with  in- 
terest from  the  time  of  collection.®^ 


61  Knack  v.  Wayne  Circuit  Judge,  «*  Eingclberg      v.      Peterson,      76 

147  Mich.  485.  Mich.  107. 

eZMcDermid  v.  Ridpath,  .39  Mich.  65  Jud.    Act,   ch.   78,    §35;    Comp. 

.372;  Knack  v.  Wayne  Circuit  Judge,  Laws  1915,  §  14435;  Wilcox  v.  Laf- 

147  Mich.  485.  lin  &  Rand  Powder  Co.,  44  Mich.  35. 

63  McLean  V.  Isbell,  44  Mich.  129;  66  Jud.    Act,    ch.    22,    §7;    Comp. 

Boatz  V.  Berg,  51   Mich.  8;   Baum-  Laws  1915,  §12797. 
garth   V.   Firemen 's   Fund  Ins.   Co., 
159  Mich.  207. 


§  34  Justices  of  the  Peace  1063 

§33.  Execution. 

Execution  may  be  issued  upon  the  judgment  of  the 
circuit  court  in  a  cause  which  it  has  reviewed  upon  cer- 
tiorari the  same  as  upon  other  judgments  rendered  in  the 
circuit  court.^"'' 

V.    Appeals  from  Justices  of  the  Peace 
A.  General  Appeals 

§34.  In  what  cases  an  appeal  lies. 

The  statute  ^^  provides  that  any  party  to  a  judgment 
rendered  by  a  justice  of  the  peace,  conceiving  himself 
aggrieved  thereby,  may  appeal  therefrom  to  the  circuit 
court  for  the  county  where  the  judgment  was  rendered, 
in  the  following  cases: 

1.  Where  final  judgment  was  rendered  on  an  issue  of 
law  joined  between  the  parties. 

'  2.  Where  final  judgment  ^^  was  rendered  on  an  issue 
of  fact  joined  between  the  parties. 

3.  Where  the  defendant  did  not  appear  and  plead  and 
final  judgment  was  rendered  for  the  plaintiff  on  the 
merits  of  his  claim. 

4.  Where  a  judgment  of  non-suit  has  been  rendered.''^*' 
There  is  no  provision  for  an  appeal  from  part  of  a 

judgment,'^  or  from  any  but  a  final  judgment;"^  and  a 
general  appeal  does  not  lie  from  a  void  judgment.''* 

Appeals  from  justice's  courts  in  some  cities  are  gov- 
erned by  particular  statutes  or  charter  provisions.'* 

67Ju(J.   Act,   ch.    78,    §  :54 ;    Coinp.  72  Duhig  v.  Lipseomb,  2  Mich.  N. 

Laws  1915,  §  144.34.  P.  1.31. 

68  .Jud.  Act,  ch.  78,  §  1  ;  Comp.  73  Harrison  v.  Sager,  27  Mich.  476. 
Laws  191.5,  §14401.  74  In     Detroit,     see     Anderson     v. 

69  Verdict  as  jndoTnent,  see  Gaines  Wartenberg,  196  Mich.  529;  Hud- 
V.  Betts,  2  Doug.  98;  Overall  v.  dleston  v.  Cliarles  Amos  &  Co.,  180 
Pero,  7  Mich.  315.  Mich.  253. 

70  See  §  35,  post.  In  Port  Huron,  see  American  Boat 

71  Wineman  v.  W.ayiie  Circuit  Co.  v.  St.  Clair  Circuit  .Tudge,  194 
.Tudge,  121   Mich.  601.  Mich.   14G. 


1064  Justices  of  the  Peace  §  35 

§35. After  judgment  of  non-suit. 

Where  the  justice  before  whom  a  case  was  pending 
refused  to  proceed  with  the  case,  on  the  supposition  that 
he  had  no  jurisdiction,  his  action  was  equivalent  to  a 
judgment  of  non-suit  and  entitled  the  plaintiff  to  appeal 
the  case  to  the  circuit  court."  So,  also,  where  the  jus- 
tice dismissed  the  suit  on  motion  for  want  of  jurisdic- 
tion on  account  of  an  alleged  defect  in  process.''^  So, 
also,  where  the  justice  dismissed  a  suit  in  replevin  for 
defects  in  the  affidavit  for  the  writ."  But,  where  the 
plaintiff  voluntarily  submits  to  a  non-suit,  or  the  justice 
dismisses  the  case  because  of  the  failure  of  the  plaintiff 
to  give  security  for  costs  or  otherwise  to  prosecute  his 
suit,  the  plaintiff  cannot  appeal.'* 

§36.  Who  may  appeal. 

Tlie  right  to  appeal  is  not  confined  to  those  who  are 
named  as  parties  to  the  suit,  but  extends  to  one  for  whose 
benefit  an  action  has  been  brought  or  defended  in  the 
justice's  court,  although  he  be  not  a  nominal  party."'® 
When  there  are  several  plaintiffs  or  several  defendants 
in  an  action  before  a  justice  of  the  peace,  it  is  not  neces- 
sary for  all  of  the  plaintiffs  or  all  of  the  defendants  to 
join  in  taking  an  appeal  to  the  circuit  court,  but  it  is 
competent  for  any  one  of  them  "conceiving  himself  ag- 
grieved" to  take  such  appeal  in  his  own  behalf,  irre- 
spectively of  the  refusal  of  his  co-parties  to  join  with 
him."  An  oral  admission  by  the  defendant  in  justice's 
court  that  judgment  should  be  rendered  against  him  for 
a  specified  amount,  while  very  strong,  if  not  conclusive, 
evidence  for  the  purpose  of  the  trial  before  the  justice, 

76Pattridge  v.  Lott,  15  Mich.  2;')1.  553;  Bowne  v.  Johnson,  1  Doug.  185. 

76  People  V.  Wayne  Circiut  Judge,  19  Wilson  v.  Davis,  1  Mieli.   156. 
30  Mich.  98.  80  Keal  v.  Wayne  Circuit   Judge, 

77  Stall  V.  Diamond,  37  Mieh.  429.  36    Mifh.    331;    Shaw    v.    Moser,    3 

78  Sohulte  V.  Kelly,  124  Mich.  330;  Mifh.    71. 
Walmsley     v.     Bowman,     151     Mifh. 


§  37  Justices  of  the  Peace  1065 

would  not  preclude  such  defendant  from  appealing  from 
the  judgment  of  the  justice  to  the  circuit  court.'^  Such 
an  admission  is  to  be  distinguished  from  those  by  which 
a  party  is  conclusively  bound  and  which  he  is  not  at 
liberty  aftei^wards  to  dispute,  such  as  admissions  made 
by  pleadings,  by  cognovit  in  courts  of  record  and  by  the 
confession  of  judgment  in  writing  before  justices  of  the 
peace  in  the  manner  provided  by  the  statute,  which,  for 
the  purposes  for  which  they  are  made,  work  estoppels, 
and  whose  correctness,  so  far  as  these  purposes  are  con- 
cenied,  is  not  to  be  drawn  in  question.'^  But  one  who 
has  stayed  execution  on  a  judgment  against  him  in  a 
justice's  court  cannot  afterwards  appeal.'^  And,  after 
a  transcript  of  a  justice's  judgment  has  been  legally 
filed  in  the  circuit  court  under  the  statute,  an  appeal 
cannot  be  taken  by  either  party,  nor  is  it  in  the  power 
of  the  circuit  court  to  allow  an  appeal,  for  the  transcript, 
when  filed,  becomes  of  the  same  force  as  a  judgment 
of  the  circuit  court,  and  the  justice  has  no  further 
control  over  the  proceedings;'*  but,  where  an  appeal 
had  been  taken  to  the  circuit  court,  and  that  court  dis- 
missed the  appeal  because  the  entry  fee  was  not  paid, 
it  was  held  that  the  filing  of  a  transcript  of  the  justice's 
judgment  in  the  circuit  court  after  such  dismissal  would 
not  preclude  the  circuit  court  from  re-instating  the  ap- 
peal upon  satisfactory  excuse  for  the  default  in  payment 
of  the  entry  fee,  since  in  re-instating  the  appeal  there 
was  no  act  required  to  be  performed  by  the  justice."* 

§  37.  Time  for. 

The  appeal  must  be  taken  within  five  days  from  the 
rendition  of  the  judgment.'^    And  if  the  justice  take  time 

81  Morrison  v.  Eiker,  26  Mich.  385.       Mich.  56,  practice  in  city  of  Detroit. 

82  Morrison  v.  Riker,  26  Mich.  385.  86  Aldrich      v.      Clinton      Circuit 

83  People      v.      Macomb      Circuit      Judge,  49  Mich.  609. 

Judges,  1  Mich.  134.  86  Jud.    Act,    ch.    78,    §2;    Comp. 

84  Davison  v.  Elliott,  9  Mich.  252.      Laws  1915,  §  14402. 
But    sec    Pattinson    v.    Flayer,    158 


1066  Justices  of  the  Peace  §  37 

to  consider  the  case  and  render  his  decision,  the  parties 
must  take  notice  of  the  time  when  it  is  actually 
rendered,  and  the  appeal  must  be  taken  within  the  five 
days  thereafter.^'  But  the  time  fixed  by  the  statute  for 
taking  an  appeal  may  be  enlarged  by  stipulation  of  the 
parties  in  certain  cases.*'  If  the  appeal  is  not  taken 
within  the  time  prescribed  by  statute,  the  circuit  court 
generally  acquires  no  jurisdiction;®'  but  the  entry  of  a 
general  appearance  and  notice  of  trial  by  appellee  waives 
the  failure  to  file  the  statutory  bond  and  affidavit  within 
the  required  time.*" 

§38.  Appeals  by  special  leave  after  five  day  limitation 
has  expired. 

Appeals  may  be  authorized  by  the  circuit  court  or  by 
the  circuit  .judge  at  chambers  after  the  expiration  of 
five  days,  when  the  party  desiring  appeal  has  been  pre- 
vented from  taking  an  appeal  by  circumstances  not  un- 
der his  control.  And,  in  all  sucli  cases,  where  the  party 
in  whose  favor  the  judgment  was  rendered  appears  by 
an  attorney  or  agent,  it  is  sufficient  to  serve  such  attor- 
ney or  agent  with  the  notices  of  all  subsequent  proceed- 
imrs  in  the  cause,  and  all  orders  made  bv  the  court  or 
judge  may  be  served  on  such  attorney  or  agent,  and 
such  service  will  have  the  same  effect  as  though  it  was 
made  on  the  party  in  whose  favor  the  judgment  was 
rendered.'^ 

The  application  for  leave  to  appeal  after  the  statutory 
lime  has  expired  should  be  by  petition,  supported,  when 
necessary,  by  affidavit,  setting  forth  specifically  the  cir- 
cumstances which  excuse  the  failure  to  appeal  within 

87  Draper  v.  Tooker,  16  Mich.  74.  Special  statute   (Local  Acts  1903, 

88  See  §  42,  post.  No.   475,    §22)    relating   to   appeals 

89  Franks  v.  Smith,  45  Mich.  326.  from  justice's  courts  in  Detroit,  see 

90  See  §§44,  49,  post.  Anderson  v.  Wartenberg,  196  Mich. 
91Jua.    Act,   ch.    78,    §8;    Comp.  529. 

Laws  1915,  §  14408. 


§  38  Justices  of  the  Peace  1067 

the  statutory  time,  and  which  constitute  the  reason  why 
leave  to  appeal  thereafter  should  be  granted.'^ 

Applications  for  leave  to  appeal  will  be  heard  only 
on  the  usual  notice  required  fpr  special  motions,  and  the 
notice  must  be  accompanied  with  a  copy  of  the  petition 
or  affidavit  on  which  the  application  is  based.®^  The 
notice  may  be  served  upon  the  attorney  or  agent  who 
appeared  for  the  opposite  party  in  justice's  court,  but, 
if  not  so  served,  must  be  served  upon  the  opposite  party 
personally.  The  notice  is  analogous  to  process  and 
equivalent  to  it,  being  the  means  whereby  the  circuit 
court  obtains  jurisdiction  of  the  party.  A  service  out- 
side of  the  state,  therefore,  is  insufficient,  even  though 
accepted  and  acknowledged  by  the  party  in  writing.^* 
The  application,  although  not  a  regular  suit  or  action, 
is  nevertheless  a  special  proceeding  materially  affecting 
tlie  legal  rights  of  the  adverse  party,  and  the  court  can- 
not, therefore,  obtain  authority  to  assume  any  control 
over  him,  except  in  the  same  way  in  which  it  can  get 
control  over  other  defendants.^*  The  rule  of  practice 
which  allows  these  notices  to  be  the  same  as  on  special 
motions  refers  to  the  time  of  service.  There  is  no  rule 
authorizing  service  by  mail  of  any  papers  in  cases  or 
upon  persons  not  already  before  the  court  and  subject 
to  its  complete  jurisdiction.^^ 

After  service  of  the  notice  of  the  application  has  been 
made,  proof  of  such  service  should  be  prepared,  in  order 
that  tlie  court  or  judge  may  know  whether  or  not  juris- 
diction has  been  obtained  to  proceed  with  the  hearing  of 
the  application.  Such  notice  can  be  properly  proved 
only  by  a  sworn  or  officially  certified  copy.  It  is  anal- 
ogous to  process  and  equivalent  to  it.     Proof  of  service 

92  Stanton      v.      Wayne      Cirrnit  Kont  Circuit  Jiulge,  88  Mich.  244. 
Judge,  126  Mich.  715.  95  McCaslin  v.  Camp,  26  Mich.  390, 

93  Cir.  Ct.  Rule  47.  96  McCaslin    v.    Camp,    26    Mich. 

94  Danville    Stove   &   Mfg.   Co.    v.  390. 


1068  Justices  of  the  Peace  §  38 

is,  therefore,  not  sufficient,  which,  instead  of  embodying 
a  copy  of  the  notice,  contains  merely  an  allegation  of 
its  substance.  The  court  or  judge  cannot  properly  act 
without  knowing  precisely  what  notice  was  served.''^ 

§39.  Under   what    circumstances    dilatory    appeal 

will  be  allowed. 

It  has  been  held  that  the  serious  illness  of  a  party  or 
that  of  a  member  of  his  family,  whereby  he  has  been 
prevented  from  taking  an  appeal  within  the  statutory 
time,  is  a  sufficient  circumstance  to  authorize  the  court 
to  allow  an  appeal  thereafter.^^  And  this  rule  would 
apply  where  the  illness  was  that  of  an  agent  of  a  cor- 
poration, who  was  charged  with  the  duty  of  perfecting 
an  appeal  in  behalf  of  the  corporation,  or  that  of  a  mem- 
ber of  his  family.^*  So,  where  a  party  relied  upon  his 
attorneys  to  take  an  appeal,  and,  by  reason  of  an  lionest 
mistake  about  the  date  of  an  adjournment,  a  judgment 
was  rendered  against  such  party  by  default,  of  which 
the  attorneys  did  not  hear  until  after  the  expiration  of 
the  statutory  time,  it  was  held  that  the  court  might  very 
properly  relieve  the  party  by  allowing  an  appeal.^  Like- 
wise reliance  on  the  statement  of  a  co-party  that  he 
would  perform  the  acts  necessary  to  perfect  the  ap- 
peal;^ or  the  fact  that  defendant,  who  was  a  non-resi- 
dent did  not  know  of  the  proceedings  until  more  than 
a  month  after  judgment,  and  that  there  had  been  no  un- 
excusable  lapses  from  that  time  up  to  the  time  of  the 
application,^  is  good  ground.     So,  also,  a  party  should 

97MeCasliTi  v.  Camp,  26  Mich.  390.  Mandamus  C'as.  186;   Tully  v.  Lena- 

98  Braastatl  v.  Alexander  H.  Dey  wee  Circuit  Judge,  McGrath,  Man- 
Iron  Min.  Co.,  .'54  Mich.  258.  damus  Cas.  185;   Merriman  v.  Peck, 

9»Braastad  v.  Alexander  H.  Dey  96  Mich.  603;    .Tackson  v.  Jackson, 

Iron  Min.  Co.,  54  Mich.  258.  135   Mich.   549. 

1  Capwell  V.  Baxter,  58  Mich.  571.  2  Potter  v.  Lapeer  Circuit  Judge, 

See   also   Jerome   v.   Wayne   Circuit  119  Mich.  522. 

Judge,   117   Mich.   19;    Lawrence  v.  3  Jackson    v.    Jackson,    135   Mich. 

Wayne     Circuit     Judge,     McGrath,  549. 


§  no  Justices  of  the  Peace  1069 

be  relieved  who  has  been  misled  by  the  fraudulent  ante- 
dating of  a  judgment;*  but  where,  at  the  close  of  the 
trial,  the  justice  stated  to  the  parties  that  he  should 
take  some  time  for  considering  the  case,  but  did  not 
state  how  much  time,  and  a  party,  supposing  that  the 
justice  could  not  render  judgment  until  the  fourth  day, 
took  no  steps  to  ascertain  the  decision  and  to  take  an 
appeal  until  the  fifth  day  after  tliat  day,  while  the  jus- 
tice in  the  meantime  rendered  judgment  the  next  day 
after  the  trial,  the  court  had  no  authority  to  allow  an 
appeal,  for  the  failure  of  the  party  to  take  his  appeal 
within  the  statutory  time  was  not  due  to  any  circum- 
stance beyond  his  control,  but  to  his  misapprehension 
of  the  legal  effect  of  the  action  of  the  justice.^  So,  where 
the  only  obstacle  shown  to  perfecting  an  appeal  by  the 
service  of  the  affidavit  and  bond  is  the  absence  of  the 
justice,  and  it  does  not  appear  that  the  appellant  could 
not  have  sei'ved  tlu^  affidavit  and  bond  on  some  member 
of  his  family  of  suitable  age,  as  allowed  by  the  statute 
in  case  of  the  absence  of  the  justice  from  his  dwelling 
liouse,  it  was  held  tliat  the  coui't  should  not  allow  an 
appeal,  and  where  it  did  allow  an  appeal  in  such  a  case, 
a  writ  of  mandamus  was  granted  to  compel  the  dismis- 
sal of  it.^  And  especially  where  there  has  been  consid- 
erable delay  in  applying  for  leave  to  appeal  and  no  rea- 
sonable excuse  is  given  for  the  delay,  leave  will  not  bo 
gi-anted.'''  And,  in  general,  leave  will  not  be  granted 
when  the  party  applying  for  it  has  not  been  prevented 
from  appealing  l)y  circumstances  beyond  his  conti'oi.^ 

4  Hall  V.   Howard,  Hf)  Mich.  219.  Clinrlos  Amos  &  Co.,  180  Mich.  2o:>. 

5  nrapor  v.  Tookor,  10  Mich.  74.  8  Stanton  v.  Wayne  Circuit  Judse, 

6  Combs  V.  Wilber,  99  Mich.  2:;4.  120  Mich.  715?  Calvert  v.  McNaugh- 

7  Pickell   V.   Coats,   147    Mich.   ;';',;  ton,  2  Mich.  N.  P.  8;   McC.onegal  v. 
Crahani     v.    Wayne    Circuit    .Tndgc,  Smitli,  1  Mich.  N.  P.  80. 

]4;i      Mich.      3G0;      Hndflleston      v. 


1070  Justices  of  the  Peace  §  40 

§  40.  Nature  and  extent  of  power  to  allow  dilatory 

appeals. 

The  statute  did  not  intend  to  give  a  general  discre- 
tion to  the  circuit  court  to  allow  appeals  in  every  case 
after  the  five  days  where,  in  their  judgment,  it  would 
be  equitable,  or  where  a  party  has  made  a  mistake  or 
drawn  an  erroneous  inference.  On  the  contrary,  it  is 
clear,  from  the  restrictive  language  used,  that  the  inten- 
tion was  to  confine  that  discretion  to  the  class  of  cases 
in  which  the  appellant  has  been  prevented  from  appeal- 
ing within  tlie  five  days  by  circumstances  beyond  his 
control,®  but,  within  this  class,  the  court  is  vested  with 
a  discretion  the  exercise  of  Avhich  will  not  be  interfered 
with,  except  where  the  supreme  court  is  fully  satisfied 
that  such  discretion  has  been  abused.^''  To  justify  an 
order  allowing  a  dilatory  appeal,  the  party  must  bring 
himself  witliin  the  terms  of  the  statute.^^ 

§  41.  How  decision  on  application  will  be  reviewed. 

The  action  of  a  court  in  refusing  to  allow  an  appeal 
after  tlie  statutory  time  will  be  reviewed  l)y  the  supreme 
court  only  upon  mandamus.  It  cannot  be  reviewed 
upon  a  writ  of  error.^^  Where,  however,  an  appeal  has 
been  allowed  and  the  court  has  taken  jurisdiction  and 

9  Draper  v.  Tookor,  16  Mich.  74;  tion  whetlior  writ  of  error  was  th(» 
Combs  V.  Wilher,  90  Mifh.  234;  proper  nietliod  of  review  does  not 
Goldhamer  v.  Wayne  Circuit  Judge,  apijear  to  have  been  raised.  Like- 
107  Mich.  259.  wise,  in  Huddleston  v.  Charles  Amos 

10  Vincent  v.  Bowes,  78  Mich.  315.  &  Co.,  180  Mich.  253,  the  denial  of 
But  see  Capwell  v.  Baxter,  58  Mich.  leave  was  reviewed  and  affirmed  on 
571.  writ  of  error,  but  the  objection  that 

H  Combs  V.  Wilber,  99  Mich.  234.  this  was  not  the  proper  method  of 
12  Vincent  v.  Bowes,  78  Mich.  :il;'i.  review  was  not  raised.  And  in  Pick- 
In  Capwell  v.  Baxter,  .kS  Mich.  571,  ell  v.  Coates,  147  Mich.  53,  a  denial 
the  denial  by  the  circuit  court  of  of  leave  was  aflirmed  on  writ  of  er- 
leave  to  appeal  was  reviewed  by  ror,  but  the  use  of  this  method  of 
the  supreme  court  upon  a  writ  of  review  was  not  objected  to  by  the 
error    and    reversed,    but    the    ques-  adverse  party. 


§  43  Justices  of  the  Peace  1071 

proceeded  with  the  case,  the  aggrieved  party  may,  by 
proper  objection,  save  the  question,  which  can  and 
shonkl  be  raised  by  writ  of  error  and  not  by  mandamus 
to  vacate  the  order  allowing  the  appeal. ^^ 

§  42.  When  time  for  appealing  may  be  extended  by  stip- 
ulation. 

The  general  rule  is  that  the  circuit  court  obtains  no 
jurisdiction  of  a  case  appealed  from  a  justice  of  the 
peace,  if  taken  after  the  expiration  of  the  five  days  al- 
lowed by  statute,  even  though  the  fifth  day  falls  on  Sun- 
day, and  that  jurisdiction  in  such  case  cannot  be  con- 
ferred by  stipnlation  between  the  parties.^*  In  that 
class  of  cases,  however,  in  which  the  statute  gives  tlie 
circuit  court  power  to  allow  an  appeal  after  five  days, 
the  parties  may,  by  stipulation,  agree  to  extend  the  time 
beyond  the  statutory  period,  and,  by  so  doing,  may  con- 
fer upon  the  circuit  court  jurisdiction  of  the  case.^* 

§43.  Affidavit. 

The  party  appealing  from  a  justice  of  the  peace  to 
the  circuit  court  must,  within  five  days  after  the  rendi- 
tion of  tlie  judgment,  present  to  the  justice  an  affidavit 
made  by  himself,  his  agent  or  attorney  before  any  per- 
son authorized  to  administer  oaths,  stating  that  such 
judgment  is  not  in  accordance  with  the  just  rights  of 
such  party,  as  the  person  making  the  affidavit  verily 
believes;   and,   in   case   there   be   any   objection   to    the 

13  Huddk'ston   v.   Charles  Amos  &  Judge,    140    Mich.    636;     Sharp    v. 

Co.,     180     Mich.     253;     Mikkola    v.  Montcahii   Circuit   Judge,   144  Mich. 

Houghton  Circuit  Judge,  165  Mich.  328;  Steel  v.  Clinton  Circuit  Judge, 

583;    Michigan    Mut.    Fire   Ins.    Co.  133   Mich.   695;    Cosgrove  v.  Wayne 

V,  Wayne  Circuit  Judge,  112  Mich,  Circuit  Judge,  144  Mich.  682. 

272;     Cattermoie    v.     Ionia    Circuit  14  Dale  v.  Lavigne,  31  Mich.  149; 

Judge,    136    Mich.    274;    Eoberts    v.  Franks  v.  Smith,  45  Mich.  326. 

Lenawee   Circuit    Judge,    140    Mich.  15  Climie  v.  Odcll,  20  Mich.  12. 
115;    Chatlield    v.    Lonanee    Circuit 


1072 


Justices  of  tiik  Peace 


§4;j 


l)ruccss,  })lcadiiigs  or  other  proceedings  and  to  the  de- 
cision of  the  justice  thereon  which  would  not  be  allowed 
to  be  made  on  the  trial  of  the  appeal,  such  objection 
may  be  set  forth  specifically  in  the  affidavit.^® 

The  affidavit  is  recpiired  by  the  statute  upon  gi-ounds 
of  public  policy  and  cannot  be  dispensed  with.^'  An 
affidavit  for  an  appeal  from  a  justice  of  the  peace,  sworn 
to  before  any  other  officer  than  the  justice,  is  of  no  avail 
unless  the  jurat  be  signed  by  such  officer;  but,  where  a 
])ers()n  desiring  to  api)eal  has  sworn  to  a  proper  affida- 
vit before  the  justice  himself,  he  has  done  all  that  can 
be  required  of  him  in  that  regard,  and  the  neglect  of  the 
justice  to  sign  the  jurat  will  not  be  allowed  to  prejudice 
the  rights  of  the  appellant.  The  ])roper  practice  in  such 
case  would  be  for  the  circuit  court  to  allow  the  justice 
to  attach  his  jurat  nunc  pro  tunc,  if  he  appears  and 
wishes  to  do  so,  and,  if  not,  to  make  an  order  for  a 
further  return,  re(iuiring  the  justice  to  certify  whether 
the  affidavit  has  been  duly  sworn  to  before  him.^®  And 
an  affidavit  for  appeal,  if  properly  sworn  to,  is  valid 
even  if  not  subscribed  by  the  afiiant.^^  An  attorney  for 
a  party  desiring  to  appeal  should  not  administer  the 
oath  to  the  affiant,  but,  if  he  does  so,  the  appeal  will  not 
for  this  reason  be  peremptorily  dismissed.  The  entry 
of  a  rule  nisi  would  be  the  proper  course  instead.'^" 


lejud.  Act,  eh.  78,  S2;  Coiiip. 
Laws  1910,  S  14102. 

The  affidavit  must  Vie  presented  to 
the  justice  within  the  five  days  even 
though  the  fifth  day  falls  on  Sun- 
day. Dale  V.  Lavigne,  31  Mich.  149 ; 
Vohlers  v.  E.  H.  Stafford  Mfg.  Co., 
171  Mich.  8,  16. 

The  time  may  be  extended  by  stip- 
ulation of  the  parties.  Climie  v. 
Odell,  20  Mich.  12. 

17  Smart    v.   Howe,    '6   Mich.   590; 


Hamilton    v.    Wayne   Circuit    Judge, 
:)2  Mich.  409. 

18  People  v.  Simondsou,  2.5  Mich. 
li:j. 

19  People  V.  Simondson,  2.5  Mich. 
113.  See  also  Merrick  v.  Mayhue, 
40  Mich.  196;  In  re  Teachout,  15 
Mich.  ,346. 

Waiver,  see  Hamilton  v.  Wayne 
Circuit  Judge,  52  Mich.  409. 

20  Bradley  v.  Andrews,  51  Mich. 
100. 


§  44  Justices  of  the  Peace  1073 

Form  of  Affidavit  on  Appeal  from  Justice  of  the  Peace  to  Circuit  Court 

State  of  Michigan,   1 
County  of   ( 

C.  D.,  being  duly  sworn,  deposes  and  says  that  on  the    day  of 

,  A.  D ,  a  suit  was  commenced  against  the  said  C.  D.,  as 

defendant,  by  A.  B.,  as  plaintiff,  before  J.  P.,  a  justice  of  the  peace  for  the 

township    (or,   city)    of    ,   in   said   county,   by   summons    (or,   as   the 

<:ase  may  be)  issued  by  said  justice  of  the  peace  on  the  day  and  year 
aforesaid,  and  made  returnable  at  the  ofliee  of  the  said  justice  of  the  peace 

in  the  said  township  (or,  city)  on  the day  of ,  A.  D , 

at o  'clock  in  the  noon,  and  that  an  issue  of  fact  was  joined 

between  the  said  parties  therein,  and  was  tried  with  a  jury  (or,  by  the 
said  justice  of  the  peace  mthout  a  jury,  as  the  case  may  be), 
and   a   final   judgment    was   rendered   thereon   by   the   said  justice   of   the 

peace  on  the    day  of    ,  A.  D ,  in  favor  of  the  said 

A.  B.,  as  plaintiff,  and  against  tlie  said  C.  D.,  as  defendant,  for  the  sum 
of    dollars,  damages,  and    dollars,  costs  of  suit. 

And  this  deponent  further  says  that  said  judgment  is  not  in  accordance 
with  the  just  rights  of  this  deponent,  as  he  verily  believes.  (The  fore- 
going is  adequate  for  a  general  appeal.  If  a  special  appeal  is  desired, 
set  forth  the  proceedings  substantially  as  above,  but  with  sufficient  full- 
ness to  exhibit  the  jurisdictional  defects  upon  which  the  special  appeal 
is  based,  and  then  add  a  specific  statement  of  the  objection  or  objections 
to  the  process,  pleading  or  other  proceedings  and  the  decision  of  the  jus- 
tice thereon.) 

C.  D. 

Subscribed,   etc. 

§  44.  Effect  of  absence  of  proper  affidavit. 

If  the  affidavit  is  omitted  or  is  defective,  the  opposite 
party  may  make  a  motion  in  the  circuit  court  that  the 
appeal  be  dismissed.  If  the  affidavit  has  been  omitted, 
tlie  court  will  thereupon  enter  an  order  dismissing  the 
appeal  peremptorily;  but,  if  it  be  merely  defective  or 
docs  not  conform  to  the  provisions  of  the  statute,  the 
appeal  will  not  be  dismissed,  provided  the  appellant 
makes  a  new  affidavit  whicli  conforms  to  such  provi- 
sions.^^ The  pr()i)er  practice  in  case  of  a  motion  to  dis- 
miss an  appeal  for  defects  in  the  affidavit  is  to  make  an 

21Jud.  Act,  ch.  16,  8  9;  Comp. 
Laws  191.5,  I*  12486;  Hyman  v.  Kad- 
rovach,  180  Mich.  ;^70. 

1  Abbott— 68  ■^'- 


1074  Justices  of  the  Peace  §  44 

order  nisi  that  the  appeal  be  dismissed  unless,  within 
a  time  specified,  a  new  aiid  correct  affidavit  be  filed. ''^ 
A  general  appearance  by  the  appellee  operates  as  a 
waiver  of  any  defect  in  the  affidavit.'^^  If  the  affidavit 
is  filed  and  then  mislaid  or  lost,  a  new  one  may  be  per- 
mitted to  be  filcd.^* 

§45.  Bond. 

The  party  appealing,  besides  filing  the  affidavit  re- 
quired, must  also,  within  five  days  after  the  rendition 
of  the  judgment,  deliver  to  the  justice  a  bond  or  recog- 
nizance to  the  adverse  party  in  conformity  with  the  fol- 
lowing requisites :  ^* 

1.  It  must  be  in  a  penalty  not  less  than  fifty  dollars 
and  not  less  than  double  the  amount  of  tlie  judgment, 
excluding  costs. 

2.  It  must  recite  the  judgment  so  far  as  to  exhibit 
the  names  of  all  the  parties,  the  character  in  which  they 
prosecuted  or  defended  before  the  justice,  the  amount 
recovered  and  the  name  of  the  justice. 

3.  It  must  contain  a  condition  that  the  appellant  will 
prosecute  his  appeal  Avitli  all  due  diligence  to  a  decision 
in  the  circuit  court  and  that,  if  a  judgment  be  rendered 
against  him  in  that  court,  he  will  pay  the  amount  of 
such  judgment,  including  all  costs,  Avitli  interest  there- 

22  People  V.  Wayne  Circuit  Judge,  the  fiftli  day  falls  on  Sunday.  Dale 
27  Mich.  303;  Bradley  v.  Andrews,  v.  Lavigne,  31  Mich.  149;  Vohlers 
51  Mich.  100;  Cole  v.  Wayne  Cir-  v.  E.  H.  Stafford  Mfg.  Co.,  171 
cuit  Judge,  106  Mich.  692.  Mich.  8,  16. 

23  Hamilton  v.  Wayne  Circuit  The  time  may  be  extended  liy  stip- 
Judge,  52  Mich.  409;  Goodin  v.  Van  ulation  of  the  parties.  Climie  v. 
Haaften,  130  Mich.  386.  Odell,  20  Mich.   12. 

24Hyman  V.  Kadrovach,  180  Mich.  Bond    must    substantially    comply 

370.  with    statute.     Wineman    v.    Wayne 

26Jud.    Act,    ch.    78,    §3;    Comp.  Circuit  .Judge,  121  Mifh.  601. 
Laws  1915,  §  14403.  Appellant  may  amend  bond  or  file 

The  bond  must  be  delivered  to  the  a  new  one.     Haseall  v.  Brooks,  105 

justice    within    five    days    after    the  Mich.  383. 
rendition  of  judgment  even  though 


I  45  Justices  of  the  Peace  10'^^ 

on,  and  that,  if  his  appeal  be  discontinued  or  dismissed, 
he  will  pay  the  amount  of  the  judgment  rendered  against 
him,  if  any,  in  the  justice's  court,  including  all  costs, 
with  interest  thereon.''^ 

4.  It  must  be  executed  by  the  appellant,  with  one  or 
more  sufficient  sureties,  or  by  two  or  more  sufficient 
sureties  without  the  appellant. 

Each  party  desiring  to  appeal  must  execute  the  bond, 
for  the  ap])eal  will  not  be  effective  as  to  any  party  not 
joining  in  the  execution  of  the  bond,  and,  as  to  him,  the 
judgment  in  the  justice's  court  will  remain  unaffected." 
Form  of  Bond  on  Appeal  from  a  Justice  of  the  Peace  to  Circuit  Court 
Know  all  men  by  these  presents,  that  we,  C.  D.,  as  principal,  and  E,  F. 
and  G.  H.,  as  sureties,  are  held  and  firmly  bound  unto  A.  B.  in  the  sum  of 
dollars  (penalty  not  less  than  fifty  dollars,  and  not  less  than  dou- 
ble the  amount  of  the  judgment,  exeluding  costs),  to  be  paid  to  the  said 
A.  B.,  or  to  his  certain  attorney,  executors,  administrators,  or  assigns,  for 
which  payment  well  and  truly  to  be  made  we  bind  ourselves,  our,  and  each 
of  our,  heirs,  executors  and  administrators,  jointly  and  severally,  firmly 
by  these  presents. 

Sealed   with   our   seals,    and    dated   the    day   of    ,   in   the 

year   one   thousand   nine   himdred    

Whereas  judgment  was   rendered   on   the    day  of    ,   A.   D. 

J  by  J.   P.,  a  justice  of  the  peace  for  the  township   (or  city)    of 

in  the  county  of   ,  in  favor  of  the  said  A.  B.,  as  plaintift', 

and  against  the  above-bounden  C.  D.,  as  defendant,  for  the  sum  of 

dollars,  damages,  and    dollars,  costs  of  suit; 

And   whereas   the   above-bounden    C.  D,  has  appealed   therefrom   to  the 

circuit  court  for  the  county  of    : 

Now  the  condition  of  this  obligation  is  such  that  if  the  above-bounden 
C.  D.  shall  proseiute  his  said  appeal  with  all  due  diligence  to  a  decision 
in  the  circuit  court  aforesaid,  and,  if  a  judgment  be  rendered  against  him 
in  the  said  circuit  court,  shall  i»ay  the  amount  of  such  judgment,  including 
all  costs,  with  interest  thereon,  and  if  the  said  appeal  shall  be  discontinued 
or  dismissed,  if  the  said  C.  D.  shall  pay  the  amount  of  said  judgment 
rendered  against  him  in  said  justice's  court,  including  all  costs,  with  inter- 
est thereon    then  this  obligation  is  to  be  void;  otherwise  to  remain  in  full 

force  and  effect. 

C.  D,  fL.  S.l 
E.  F.  [L.  a.] 
G.  H.  [L.  S.l 

26Wineman     v.     Wayne     Circuit  27  .Tojtp  v.  Kegel,  83  Mich,  50. 

Judge,  121  Mich.  601. 


1076  Justices  of  the  Peace  §  45 

(The  bond  may  be  executed  by  the  appellant  with  one  or  more  sureties, 
or   by  two   or  more  sureties  with   the  appellant.) 

State  of  Michigan,  1 
County  of ( 

E,  F.  and  G.  H.,  the  sureties  named  in  the  foregoing  bond,  being  duly 
sworn,  each  for  himself  deposes  and  says  that  he  is  worth  in  unincumbered 
property,  not  exempt  from  execution  under  the  laws  of  this  state,  the 
sum  of dollars,  after  tlie  payment  of  all  just  debts,  claims,  and  lia- 
bilities. 

E.  F. 
G.  H. 
Subscribed,  etc. 

I  approve  E.  F.  and  G.  H.  as  sureties  in  the  foregoing  ))ond. 
Dated,  etc. 

J.  P., 
Justice  of  the  Peace 
(or.  County  Clerk.) 

§  46.  By  whom  to  be  approved. 

Tlio  })ond  or  recognizance  may  be  taken  by  the  justice 
by  wliom  the  jiulginent  was  rendered  or  by  any  other 
justice  of  the  peace  of  the  same  county  or  by  the  county 
clerk  of  the  same  county;  but  no  other  justice  of  the 
peace  or  the  county  clerk  has  power  to  approve  any 
such  bond  or  recoo-nizance  when  approval  has  ])een  de- 
nied by  the  trial  justice  for  or  on  account  of  its  insufli- 
ciency.  When  a  justice  of  the  peace  refuses  to  approve 
any  such  ])ond  or  recognizance  because  of  its  insuffi- 
ciency, it  is  his  duty  to  indorse  that  fact  in  writing  upon 
llie   instrument.^* 

§  47.  Justification  by  sureties. 

No  justice  of  tlie  peace  or  county  clerk  is  allowed  to 
take  any  bond  or  recognizance  on  appeal  unless  the  pei'- 
son  or  persons  entering  into  it  as  surety  justifies  his  or 
their  responsibility  in  writing  and  under  oath,  which 

28  Jud.    Act,    ch.    78,    S."?;    Comp.  Deputy  county  clerk  may  approve 

Laws    IQl.'j,    §1440.3;    Sherwood    v.       bond.        Cole      v.      Wayne      Circuit 
Ionia  Circuit  .Tudge,  107  Mich.   I.K).       .Tiidge,   106  Midi.  092. 


§  48  Justices  of  the  Peace  lO''"' 

justification  must  be  indorsed  on  the  bond;^'  but  no 
justification  is  necessary  when  the  opposite  party  or  his 
attorney  admits  the  pecuniary  responsibility  of  the 
surety  or  sureties  to  be  sufficient.  It  is  the  duty  of  the 
justice,  at  the  time  of  taking  a  bond  or  recognizance, 
to  certify  whether  the  surety  justified  or  his  respon- 
sibility was  admitted.^" 

§48.  Purpose  of  bonds. 

AVhile  the  affidavit  on  appeal  is  required  upon  grounds 
of  public  policy  and  therefore  cannot  be  dispensed  with, 
tlie  bond  is  intended  for  the  benefit  and  protection  of 
the  appellee,  and  there  is  therefore  nothing  to  prevent 
him  from  dispensing  with  it  if  he  so  desires. ^^ 

When  an  appeal  is  taken  of  a  case  commenced  by  writ 
of  attachment  under  which  property  of  the  defendant 
has  been  seized  and  is  held  by  tlie  officer,  the  property 
so  lield  is  thereby  released  and  the  appeal  bond  stands 
in  the  place  of  such  property  to  insure  satisfaction  of 
the  judgment  which  the  appellee  may  recover;  ^^  but, 
where  a  suit  commenced  by  writ  of  replevin  is  appealed 
])y  the  plaintiff  to  the  circuit  court,  the  appeal  bond 
does  not  supersede  or  take  the  place  of  the  replevin 
])ond,  ]jut  is  rather  a  cumulative  security  in  favoi-  of  the 
defendant.'^ 

The  appeal  l)ond  operates  as  a  stay  of  the  proceed- 
ings.^* If  an  execution  has  l^een  issued  before  the  ap- 
peal is  taken,  on  a  cei'tificate  being  presented  to  the  of- 
ficer holding  the  execution,  showing  tlie  aj^peal,  he  must 
forthwitii  release  the  property  or  the  body  of  the  party 

29.Tud.    Aft,    fh.    78,    §4;    Coinp.  31  Smart    v.   Howe,   :i    Mich.   590; 

Laws   1915,  §  14404.  Weiss   v.   Chambers,   50   Mich.   158. 

Bond  may  be  amended  on  the  trial  32  Bushey  v.  Raths,  45  Mich.  181. 

1)y    permittino^    sureties    to    justify.  33  Brabon  v.   Pierce,  ."14   Mich.  39. 

Hyman  V.  Kadrovach,  180  Mich.  .'',70.  84  Hascall    v.    Brooks,    105    Mich. 

SO.Tud.    Act,    ch.    78,    §5;    Comp.  .185. 
Laws   1915,    §  14405. 


1078  Justices  of  the  Peace  §  48 

against  whom  it  was  issued,  if  either  have  been  taken, 
or  if  the  party  has  been  committed  to  prison,  tlie  jailor 
must  release  him  from  imprisonment  upon  the  service 
upon  the  jailor  of  such  a  certificate.^^ 

§  49.  Effect  of  absence  of  proper  bond. 

If  the  bond  be  omitted  or  be  defective,  the  appellee 
may  move  in  the  circuit  court  to  liave  the  appeal  dis- 
missed. Where  the  bond  has  been  omitted,  a  ])eremp- 
tory  order  will  be  entered  dismissing'  the  appeal;  but, 
where  the  bond  is  informal  or  imperfect,  the  appeal  will 
not  be  dismissed  if  the  appellant  furnishes  a  new  bond 
to  supply  the  defect.^*^  In  case  of  such  informality  or 
imperfection,  when  a  motion  to  dismiss  is  made,  the 
proper  practice  for  tlie  court  is  to  enter  an  order  nisi 
dismissing-  the  appeal  unless  within  a  specified  time  a 
new  and  sufficient  bond  be  filed. ^'''  An  appellee,  in  mov- 
ing to  dismiss  an  appeal  because  of  a  defective  bond, 
does  not  release  his  rights  under  that  bond  until  the 
appellant  has  filed  a  new  bond  in  pni'suance  of  tlie  order 
of  the  court. ^' 

A  motion  to  dismiss  an  appeal  for  want  of  a  proper 
bond  should  be  seasonably  made.  The  objection  is  one 
that  may  be  waived  by  the  appellee,  and  his  general 
appearance  in  the  cause  in  the  circuit  court  does  waive 
it.  The  motion  to  dismiss  the  appeal  should,  therefore, 
be  made  before  a  general  apj^earance  in  tlie  circuit  court, 
and  comes  too  late  afterwards.^® 

35Jud.   Act,   Ph.   78,   §10;    Comp.  Wayne    Cirfiiit    Juil^o,    121     Midi. 

Laws  191.5,  §  14410.  fiOl. 

36Jud.    Aet,   eh.    16,    §9;    Conip.  38  Hasoall    v.    Brooks,    ^05    Mir-h. 

Laws  1915,  §  12486.  .^S,"]. 

Amendment  of  bond  should  1)fi  al-  39  Shaw    v.    Moser,    ?,    Mich.    71 ; 

lowed.      Hyman    v.    Kadrovach,    ISO  Tower  v.   Lamb,   6   Mich.  .'562;    Mc- 

Mich.  370.  Combs    v.    Johnson,    47    Mich.    592; 

37  People  V.  Wayne  Circuit  Judge,  Sherwood  v.  Ionia  Cirfiuit  .Indfje,  107 

27  Mich.  .HO.".;  Cole  v.  Wayne  Circuit  Mich.  1^,6;   Goodin  v.  Van  Haaften, 

Judge,  106   Mich.  692;   Winemaii   v.  UO  Mich.  .'!86. 


§  50  Justices  o^  the  Peace  1079 

§  50.  Payment  of  costs  to  the  justice. 

The  statute  provides  that  the  apyjellant  shall,  within 
five  days  after  the  rendition  of  the  judgment,  in  addi- 
tion to  the  making  and  filing  of  an  affidavit  and  bond, 
pay  to  tlie  justice  the  taxabki  costs  of  the  prevaiUng 
party,  together  with  the  sum  of  one  dollar  for  making 
his  return  to  the  appeal,  and  the  further  sum  of  three 
dollars  as  clerk  and  entry  fee,  to  be  paid  by  the  justice 
to  the  clerk  of  the  court  to  which  the  appeal  is  taken 
at  the  time  of  delivering  to  him  the  papers  pertaining 
to  the  appeal.  No  appeal  will  be  allowed  until  these 
conditions  are  complied  with;  and  all  species  of  appeals 
ordered  or  directed  by  any  court  or  judge  are  subject 
to  tlie  same  provisions  of  payment.*''  But  although  a 
party  is  not  entitled,  as  a  legal  right,  to  have  the  jus- 
tice make  return  to  his  appeal,  unless  within  the  five 
days  he  pays  to  the  justice  the  costs  of  the  judgment, 
the  fee  for  making  his  return  to  the  appeal  and  the  clerk 
and  entry  fee,  a  distinction  is  made  between  the  jus- 
tice's fee  for  making  the  return  and  the  other  costs  and 
fees.  The  distinction  is  that  the  justice  may  waive  the 
payment  of  the  former,  in  which  he  alone  is  concerned,*^ 
but  cannot  waive  the  latter,  in  which  not  he,  but  other 
parties,  are  interested.*^  The  justice  may  indeed  insist 
upon  the  payment  of  his  fee  for  making  the  return  as 
well  as  of  tlie  other  costs  and  fees,  and  cannot  be  com- 
pelled to  make  return  to  the  appeal  in  the  absence  of 
such  payment;  but,  if  he  waives  his  fee,  he  may  be  com- 
pelled to  make  return  in  the  same  manner  as  if  it  had 
been  paid,  and,  if  he  makes  the  return  without  payment 
of  his  fee,  the  a])peal  will  not  be  dismissed  for  such  non- 
payment."   In  other  words,  the  payment  of  the  justice's 

40Jiul.    Act,    ch.    78,    S6;    Coinp.  42  Swarthout     v.     McKnight,     99 

Laws  1915,  §  14406.  Mich.  347. 

41  People  V.  Allegan  Circuit  Judge,  43  People  v.  Allegan  Circuit  Judge, 

29    Midi.   487;    Marr   v.    Cook,    147  29    Mich.   487;     Stevenson   v.    Kent 

Mich.  425.  Circuit  Judge,  44  Mich.   162. 


1080  Justices  of  the  Peace  §  50 

Tee  lor  inakiiig  the  rc'luni  is  not  a  jurisdictional  require- 
ment." Upon  this  point,  the  statute  provides  that  no 
appeal  shall  be  dismissed  on  the  ground  that  the  costs 
of  the  justice  have  not  been  paid,  but,  in  all  cases,  the 
fact  of  a  return  having  been  made  by  a  justice  shall  be 
conclusive  evidence  of  such  fees  having  been  paid."  On 
the  other  hand,  if  the  other  costs  and  fees  be  not  paid, 
not  only  can  the  justice  not  be  compelled  to  make  re- 
turn to  the  appeal,  but  he  has  no  authority  to  do  so,  and, 
if  he  should,  the  appeal  would  be  dismissed.*^  Pajanent 
of  such  costs  and  fees  is  a  jurisdictional  re(iuirenient. 

In  case  of  the  absence  of  the  justice  from  his  dwelling 
house,  such  costs  and  fees  may  be  paid  to  any  member  of 
his  family  of  suitable  age.'*''  Of  course  the  provision  as 
to  making  payment  to  a  member  of  the  family  of  the 
justice  need  not  be  acted  on  where  payment  has  already 
been  made  to  the  justice." 

§  51.  Service  of  affidavit  and  bond  where  justice  is  absent. 
Tlie  statute  provides  that  the  affidavit  and  bond  or 
recognizance,  in  case  of  the  absence  from  his  dwelling 
house  of  the  justice  by  whom  the  judgment  was  rendered, 
may  be  served  on  any  meml)er  of  his  family  of  suitable 
age." 

§  52.  Proceedings  if  office  of  justice  has  terminated. 

The  statute  provides  tliat,  when  the  term  of  office  of 
a  justice  shall  expire,  or  the  office  otherwise  becomes 
vacant,  between  the  rendition  of  a  judgment  by  him  and 
the  time  limited  for  appealing,  such  justice  may  take 

**  People  V.  Allegau  Circuit  Judge,  47  Jud.    Act,    ch.    78,    S  9 ;    Comp. 

29  Mich.  487.  Laws   1915,   §  14409. 

45  Jud.  Act,  ch.  78,  §18;  Conip.  48  Combs  v.  Saginaw  Circuit 
Laws   1915,   §  14418.  Judge,  99  Mich.  234. 

46  Swarthout  v.  McKnight,  99  49  Jud.  Act,  eh.  78,  §  9 ;  Comp. 
Mich.   .347;    Aldrich    v.   Clinton   Cir-  Laws    1915,    §14409. 

cuit  Judge,  49  Mich.  G09. 


§  53  Justices  of  the  Peace  1081 

and  approve  the  bond  or  recognizance,  and  it  shall  be 
his  duty  to  make  return  to  the  appeal  in  like  manner 
as  if  he  were  in  office  at  the  time  of  taking  the  bond  or 
recognizance  and  of  making  tlie  return;  ^°  or  either  party, 
conceiving  himself  aggrieved  ])y  the  judgment,  may, 
within  five  days  after  the  books  and  papers  of  the  justice 
have  been  transferred  to  another  justice  pursuant  to 
law,  deliver  a  notice  of  a])peal  and  bond  or  recognizance 
to  tlie  justice  having  control  of  the  judgment  and  pay 
]iim  the  fees  provided,  and  such  justice  must  tliereupon 
witliin  ten  days  thereafter  make  return  to  the  appeal 
in  the  same  manner  and  with  like  effect  as  if  the  judg- 
ment appealed  from  had  been  rendered  by  him.^^ 

Whenever  an  appeal  has  been  duly  made  from  a  judg- 
ment rendered  by  a  justice  of  the  peace  while  in  office, 
either  before  or  after  the  justice  has  gone  out  of  office, 
and  before  or  after  the  books  and  papers  have  been  de- 
livered to  tlie  clerk  of  the  township  or  city  or  to  his 
successor  in  office,  it  is  his  duty  to  make  return  to  the 
appeal  in  like  manner  as  if  he  were  in  office  at  the  time 
of  making  the  return. ^^ 

§  53.  Return  of  justice. 

Within  ten  days  after  an  appeal  has  been  made,  it  is 
the  duty  of  the  justice  to  make  a  return  of  the  proceed- 
ings had  before  him  to  the  circuit  court.  In  this  return, 
must  be  stated  the  following:  ^^ 

1.  The  title  of  the  cause  and  tlie  character  in  which 
the  parties  prosecuted  or  defended  before  him. 

60Jud.    Act,    eh.    78,    §7;  Conij).          This  section   makes  provision   for 

Laws  1915,  §  14407.  tlie    return   of   all    matters    required 

61  ,Jud.   Act,   ch.    78,    §.'^.9;  Comp.       to  be   returned   where  the  appeal   is 
Laws   1915,   §  14439.  upon  the  merits  and  the  affidavit  is 

62  Jud.  Aft,  ch.  78,  §37;  Comp.  not  special.  Chapi)ee  v.  Thomas,  '} 
Laws    1915,    §  14437.  Mich.  53. 

53  Jud.   Act,   eh.    78,    §11;    Comp.  Return    where   affidavit   is   special, 

Laws   1915,   §14411.  see  §712,  post. 


1082  Justices  of  the  Peace  §  53 

2.  The  demand  of  the  plaintift*;  and,  if  his  declaration 
was  in  writing,  a  copy  thereof  must  be  set  forth." 

3.  The  plea  of  the  defendant  and  any  notice  of  set-off 
or  matter  of  defense  given  by  him,  and  all  other  proceed- 
ings of  the  parties  npon  which  a  trial  was  had  or  an 
issue  was  framed;  and,  if  in  writing,  copies  thereof  must 
be  set  forth. 

4.  Tf  tlic  trial  was  by  jnry,  the  names  of  tlie  jurors 
and  their  verdict. 

5.  The  .judgment  rendered,  and  the  time  of  rendering 
it. 

6.  The  time  when  the  affidavit  and  bond  or  recogni- 
zance were  delivered  to  the  justice  and  the  fees  of  the 
justice  were  paid. 

Facts  coming  to  the  knowledge  of  the  justice  after 
trial  should  not  be  included."  The  return  need  not  be 
signed  if  it  purports  in  its  caption  to  be  by  the  justice.*^ 
Where  the  return  fails  to  show  jurisdiction  of  the  jus- 
tice, defendant  is  not  bound  to  plead  in  the  circuit  court, 
and  the  return  should  not  be  allowed  to  be  amended 
without  a  proper  application  and  showing  after  notice 
to  defendant.^'''  The  justice  cannot  excuse  himself  from 
making  a  return  by  the  fact  that  the  amount  paid  him 
did  not  include  costs  of  the  return  where  he  gave  a  re- 
ceipt foi-  "fees  and  costs  of  appeal."^*  The  return  can- 
not be  amended  after  verdict  by  stipulaticm  of  the  par- 
ties, although  such  a  stipulation  brought  upon  the  record 
might  in  some  cases  be  treated  as  an  admission.^® 

§  54.  Filing-  return  in  appellate  court. 

AVithin  ten  days  after  an  appeal  has  been  duly  made, 
it  is  the  duty  of  the  justice  to  file  his  return  with  the 

64  Tf    the    return    does    not    state  66  Smart   v.   Howe,  ?,   Mich.  590. 

whether   the  pleadings  were  written  67  Moore  v.  Hansen,  T.^  Mieh.  564. 

or    oral,    it    will    be    presumed    that  58  Stevenson      v.      Kent      Cirfuit 

they    were    oral.      Kerr    v.    Bennett,  -Tudge,  44  Mioh.   162. 

109  Mieh.   546.  69  Applebaum     v.     CJoldman,     155 

66Savier  v.  Chipman,  1  Midi.  116.  Mich.   369. 


§  55  Justices  ok  the  Peace  1083 

clerk  of  tliu  circiiit  court,  together  with  all  papers  filed 
with  him  by  either  party  relating  to  the  cause  and  the 
affidavit  and  bond  or  recognizance  delivered  to  him  by 
the  appellant.^" 

§  55.  Compelling  justice  to  make  return. 

Until  the  return  of  the  justice  is  filed  with  the  clerk 
of  the  circuit  court,  it  cannot  be  said  that  the  cause  is 
in  that  court.  Without  such  return,  the  circuit  court 
gets  no  jurisdiction  over  the  cause  itself  and  cannot  try 
it,  but  it  has  jurisdiction  to  inquire  into  the  facts  for 
the  purpose  of  ascertaining  wliether  the  appellant  has 
paid  the  necessary  fees  and  costs  and  whether  the  affi- 
davit and  bond  or  recognizance  have  been  duly  made 
and  filed  with  the  justice,  and,  if  so,  to  compel  a  re- 
turn.^^  But,  in  ascertaining  these  facts,  the  appellate 
court  must  get  them  from  the  justice  himself  by  calling 
upon  him,  upon  cause  shown  by  affidavit,  to  state  the 
facts  bearing  upon  the  question,  and  the  court  and  the 
parties  must,  upon  this  question,  and  in  this  proceed- 
ing, be  governed  by  his  return  of  such  facts.*"^  To  this 
end,  the  statute  provides  that  the  court  to  which  the 
appeal  has  been  taken,  upon  evidence  that  an  appeal 
has  been  duly  made,  may,  by  rule  and  attacliment,  com- 
pel a  return  by  the  justice  of  his  proceedings,  and  of  all 
papers  and  matters  required  to  be  returned  by  him,  dur- 
ing the  same  term  or  at  a  subsequent  tenii;  and,  if  a  rule 
has  been  entered  requiring  sucli  return  and  has  been 
served  ten  days  previously,  the  court  may  and  should 
issue  an  attachment  against  the  delinquent  justice,  un- 
less good  cause  to  the  contrary  be  shown  by  him.^' 

eOJud.   Act,  ch.   78,   §13;    Comp.  61  People  v.  Allegan  Circuit  Judge, 

Laws  1915,  §  14413.  29  Mich.  487. 

The  failure  of  the  justice  to  file  62  People  v.  Allegan  Circuit  .Judge, 

his   return    within   the   time   limited  29  Mich.  487. 

does  not  preclude  a  remedy  on  the  68  Jud.   Act,  ch.    78,    §14;    Conip. 

appeal  bond.     Nowlin  v.  Tibbita,  44  Laws  1915,   §  14414, 
Mich.  77. 


1084  Justices  of  the  Peace  §  55 

If  a  justice  to  whom  a  notice  of  appeal  and  bond  or 
recognizance  have  been  duly  delivered  dies,  becomes  in- 
sane, removes  out  of  the  state  or  absconds,  so  that  a 
return  by  him  camiot  be  compelled,  it  is  the  duty  of 
the  justice  to  whom  his  books  and  papers  have  been 
transferred  to  make  and  file  with  the  clerk  of  the  cir- 
cuit court  a  transcript  of  the  docket  of  the  cause,  to- 
gether with  all  the  papers  relating  thereto,  and  the  cir- 
cuit court  may  proceed  thereon  in  the  same  maimer  as 
if  the  return  had  been  made  by  the  justice  who  rendered 
the  judgment.^*  And  if,  for  any  cause,  a  return  to  an 
appeal  cannot  be  compelled,  the  court  to  which  the  ap- 
peal has  been  made  may  receive  the  affidavits  of  the  wit- 
nesses and  the  parties  to  the  facts  and  circumstances 
of  the  proceedings  and  judgment  appealed  from  and 
may  proceed  thereon  in  the  same  manner  as  if  tliose 
facts  had  been  returned  by  the  justice  whose  duty  it  was 
to  make  return  to  the  appeal.^* 

If  a  justice  whose  duty  it  is  to  make  retuni  to  an  ap- 
])eal  removes  into  an}'  other  county  in  this  state  before 
making  a  return  according  to  law,  tlie  court  to  which  the 
appeal  is  made  may  compel  a  return  in  the  same  man- 
ner as  if  the  justice  had  not  removed.^^ 

§  56.  Compelling  amendment  of  return. 

Upon  satisfactory  evidence  that  the  return  of  a  justice 
is  substantially  erroneous  or  defective,  the  court  may 
compel  him  to  amend  it  in  the  same  manner  as  it  may 
compel  a  return  in  the  first  instance.^''^  A  general  ap- 
pearance in  the  case  in  the  circuit  court  does  not  operate 

64Jutl.   Act,   ch.    78,    §38;    Conip.  67  Jud.    Act,   ch.   78,    §15;    Comp. 

Laws  1915,  §  144.38.  Laws    1915,     §14415;     Maxwell     v. 

66  Jud.    Act,   ch.    78,   §  40 ;    Comp.       Deens,  46  Mich.  35. 
Laws  1915,  §  14440. 

66  Jud.   Act,   ch.    78,    §41;    Comp. 
Laws  1915,  §  14441. 


§  58  Justices  of  the  Peace  1085 

as  a  waiver  of  the  right  of  Ji  party   to  move  for  an 
amended  or  a  further  return.^' 

§  57.  Imprisonment  of  justice  to  compel  obedience. 

Upon  an  attachment  being  issued  against  a  justice, 
either  to  compel  liim  to  make  a  return  to  an  appeal  or 
to  amend  an  erroneous  or  defective  return,  tlie  court 
may  punish  his  disobedience  by  imprisonment  until  he 
submit,  and  may  adjudge  that  he  pay  the  costs  of  the 
proceedings  against  him,  and  may  enforce  such  order 
as  other  orders  of  the  court. ^^ 

§  58.  Status  of  appealed  case  in  circuit  court. 

On  the  filing  of  the  return  of  the  justice,  the  circuit 
court  becomes  possessed  of  the  cause  the  same  as  if  it 
had  been  originally  commenced  in  the  appellate  court, 
subject  to  the  same  rules  and  regulations;  "''^  and,  for  all 
fees  and  costs  in  the  action  in  the  appellate  court,  the 
bond  of  the  appellant  will  be  holden  as  if  made  and  filed 
in  an  action  originally  commenced  in  the  appellate  court, 
and  the  appellate  court  will  have  power  to  order  new 
bonds  or  require  security  for  costs  and  make  other  or- 
ders in  its  discretion  as  in  actions  originally  therein 
commenced.'^ 

The  api)eal  takes  up  to  the  appellate  court  tlie  same 
cause  which,  prior  to  the  appeal,  was  in  the  justice's 
court,  and  effects  a  rehearing  of  the  cause  upon  the 
merits.     It  is  in  the  nature  of  a  new  trial. '^    The  action 

68Marr  v.  Cook,  147  Mkli.  425.  Evers  v.  Sager,  28  Mi.'i.  47;  Stroli- 

69Ju(l.   Act,   cli.    7H,   S  16;    Comi..  schcin  v.  Kraiiidi,  157  Mich.  ;{:{5. 
Laws   1915,  §  14416.  An  appeal  by  a  defendant  releases 

70Jud.    Act,  ch.   78,    §17;    Comp.  a    garnishee,    but    an    appeal    by    a 

Laws     1915,      §14417;     Dattner     v.  plaintiff    does    not.      In    the    latter 

Weiaz,  198  Mich.  367.  case,   the   ju.stice   is   required   to   re- 

VI  Jud.   Act,   ch.   78,    §17;    Conip.  turn     all     garnishment     proceedings 

Laws    1915,     §14417;     Swantek    v.  auxiliary    to  the  suit  together  with 

Jarnioszki,  162  Mich.  617.  the  main  action,  and  thereafter  pro- 

72  Dunn    v.    Sutliff,    1    Midi.    24 ;  ccedings  against  the  garnishee  may 


1086  Justices  of  the  Peace  §  58 

after  appeal  is  still  the  same  action  that  was  in  the  jus- 
tice's court.''  Tlic  circuit  court  can  render  no  other  or 
different  form  of  judgment  than  the  justice  could  have 
done,'*  tliougli  this  limitation  may  be  waived  by  tlie 
party  entitled  to  insist  upon  it,'*  and,  if  the  case  is  of 
a  class  of  which  the  justice  could  not  exercise  jurisdic- 
tion, neither  can  the  circuit  court.'®  The  jurisdiction  of 
the  circuit  court  in  a  case  taken  to  it  on  appeal  from  a 
justice  of  the  peace  is  strictly  appellate  and  is  no  broader 
than  that  of  the  justice.  The  issue  must  be  substantial- 
ly the  same  in  both  courts.  The  claim,  either  of  the 
plaintiff  or  of  the  defendant,  cannot  be  enlarged  in  the 
circuit  court,  for  to  do  so  would  be  pro  tanto  original, 
and  not  appellate,  jurisdiction."  But  tlie  plaintiff  may 
discontinue  as  to  part  of  several  defendants  and  pursue 
the  remaining  defendants  precisely  as  he  could  do  if 
the  case  had  been  commenced  in  the  circuit  court."  So, 
also,  he  may  discontinue  as  to  all  of  the  defendants,  and, 
in  either  case,  the  discontinuance  does  not  operate  to 
revive  the  judgment  rendered  in  the  justice's  court." 

be    coiiduetctl    in    tlic    same    inaiiiier  75  I'^vcrs    v.    Sager,    28    Mich,    47. 

in  all  respects  as  if  originally  com-  And  see  Wells  v.  Scott,  4  Mich.  347; 

meuced  in  the  circuit  court,  the  an-  Tower  v.  Lamb,  6  Mich.  362. 

swer  of  the  garnishee  being  treated  76  Sheldon    v.    Sullivan,    45    Mich, 

as   if  made   in   the  circuit   court   on  324. 

the  day  on  which  the  return  is  made  77  Cross  v.  Eaton,  48   Mich.    184; 

by    the    justice.      Jud.    Act,   ch.    70,  Wells  v.  Scott,  4  Mich.  347;  Fowler 

§36;     Comp.    Laws    1915,    §14396.  v.  Hylaud,  48  Mich.  179;   Stanley  v. 

Sec  Erickson  v.  Duluth,  etc.,  R.  Co.,  Anderson,  107  Mich.  384;   Loranger 

105    Mich.    415,    as    to    the    former  v.    Davidson,    110    Mich.   605;    West 

statute.  Michigan  Furniture  Co.  v.  Diamond 

73Brabon  v.  Pierce,  34  Mich.  39;  Glue  Co.,  127  Mich.  651;   Button  v. 

Evers  V.  Sager,  28  Mich.  47;  French  Russell,   55    Mich.   478;    Hatzenbuh- 

V.  Weise,  112  Mich.  586;  McCabe  v.  ler  v.  Lewis,  51  Mich.  585. 

Loonsfoot,  119  Mich.  323;    Soper  v.  78  Hillman    v.    Hulett,    149    Mich. 

Hawkins,  56  Mich.  527.  289;    Wilson    v.    Medler,    140    Mich. 

74  Cross  V.   Eaton,  48  Mich.   184.  209.     See  Discontinuance. 

And  see  Brown  v.  People,  39  Mich.  79  French  v.  Weise,  112  Mich.  586. 
57;  Nelson  v.  People,  38  Mich.  618; 
In  re  Irvin,  29  Mich.  43. 


§  61  Justices  of  the  Peace  1087 

But  an  appellant,  whether  plaintiff  or  defendant,  can- 
not dismiss  his  appeal  without  the  consent  of  the  ap- 
pellee "°  or  the  permission  of  the  court.*^ 

§  59.  Trial  by  court  or  jury. 

In  all  cases  of  appeal  brought  into  the  circuit  court, 
as  well  as  in  eases  commenced  therein,  all  issues  of  fact 
ai'e  tried  by  the  court  unless  a  jury  be  demanded  by  one 
of  the  parties,  but,  without  such  a  demand,  the  court 
may  order  the  cause  to  be  tried  by  a  jury  whenever,  in 
its  opinion,  the  subject-matter  is  peculiarly  proper  for 
the  consideration  of  a  jury.^^ 

§  60.  How  appeal  case  put  on  calendar. 

When  a  return  to  an  appeal  has  been  filed  in  the  cir- 
cuit court  on  or  before  the  fourteenth  day  before  the 
first  day  of  any  term,  it  is  the  duty  of  the  clerk  to  place 
the  case  upon  the  calendar  for  that  term  without  notice 
of  trial  or  note  of  issue.*^  When  the  return  is  filed  after 
the  fourteenth  day,  the  case  may  be  placed  on  the  cal- 
endar at  any  time  either  during  or  before  the  term  at 
the  request  of  the  attorney  for  either  party;  but  he  must 
forthwith  give  notice  in  writing  to  all  the  other  parties 
or  their  attorneys  of  the  fact  that  the  case  has  been  so 
placed  upon  the  calendar,  whereupon,  after  the  lapse 
of  foui'teen  days,  the  case  will  stand  for  trial  the  same 
as  other  cases.'*  This  notice  may  be  served  in  the  same 
manner  as  other  papers  in  appeal  cases. 

§  61.  Service  of  papers  in  appeal  cases. 

If  a  party  lias  appeared  by  attorney,  papers  should 
be  served  upon  the  attorney,  but  where  the  party  upon 

80  Peterson    v.    Frey,    109    Mich.  L.nws  1915,  §  12584.     See  also  Jury. 

089.  83  Jud.    Act,    ch.    18,    §1 ;    Comp. 

SlSwantok      v.      .Taimnszki,      162  Laws   1915,    §12573. 

Mich.  617.  84  Jud.    Act,    ch.    18,    §5;    Comp. 

82  Jud.   Act,  ch.   18,    §12;    Comp.  Laws  1915,  §12577. 


1088  Justices  of  the  Peace  §  61 

whom  a  paper  is  to  be  served  has  not  appeared  by  at- 
torney and  is  a  resident  of  this  state,  service  may  be 
made  upon  him  personally  or  by  mail  in  the  manner 
provided  for  service  on  attorneys  by  mail;  and,  if  there 
be  two  or  more  such  parties  who  are  partners,  service 
upon  one  of  them  will  be  sufficient.  Tf  the  party  is  not 
a  resident  of  tliis  state,  or  if  his  place  of  residence  can- 
not be  ascertained,  the  ])apei*  may  be  served  by  posting*' 
it  in  a  conspicuous  place  in  the  office  of  the  county  clerk 
and,  if  the  post  office  address  of  the  party  be  known  or 
can  be  ascertained,  a  copy  must  be  mailed  to  him.*^ 

Proof  of  such  service,  mailing'  or  posting,  and  the 
facts  authorizing  such  posting,  must  then  be  filed  be- 
fore the  court  will  take  any  action  on  the  strength  there- 
of.*® If  the  service  has  been  by  posting  in  the  clerk's 
office,  the  proof  should  show  that  it  was  i)ut  in  a  con- 
spicuous place,  and  the  place  should  be  mentioned." 
Indeed,  every  clause  and  condition  of  the  rule  is  to  be 
regarded  as  having  some  significance,  and  no  presump- 
tion can  be  made  to  aid  a  statement  which  omits  any 
essential  particular." 

§62.  Pleadings. 

New  pleadings  may  be  filed  by  leave  of  court.  For  in- 
stance, where  the  declaration  before  the  justice  was  ver- 
bal, it  is  proper  to  permit  the  filing  of  a  written  declar- 
ation by  way  of  amendment  on  appeal.*^  So  where  the 
want  of  a  declaration  is  objected  to  in  the  circuit  court, 
it  is  proper  to  allow  the  filing  of  an  affidavit  of  the 
justice,  with  a  declaration  attached,  stating  that  the 
declaration  is  lost,  and  that  the  one  attached  is  the 
same  as  that  filed  before  the  justice,  to  the  best  of  his 

85  Cir.   Ct.  Rules   J),  11.     See  also       See  also   Peojile   v.   Nankin   Com'rs, 
Service  of  Papers.  14  Mich.  528. 

86  Cir.  Ct.  Rule  11.  88  [Vople  v.  Bacon,  IS  Mich.  247. 

87  People  v.  Bacon,  18  Mich.  247.           89  Zeigler  v.  Heuiy,  77  Mich.  480. 


§  62  Justices  of  the  Peace  1089 

knowledge  and  belief.^"  And  if  the  complaint  has  been 
lost,  it  is  proper  to  allow  plaintiff  to  file  a  copy  to  com- 
plete the  record.^^  Defects  in  the  declaration  which 
might  have  been  remedied  by  amendment  before  the  jus- 
tice cannot  be  first  urged  in  the  circuit  court.*^  Where 
the  justice  is  not  shown  to  have  had  any  jurisdiction 
over  the  defendant,  by  the  return,  defendant  need  not 
plead  or  make  any  defense  in  the  circuit  court.^^  Where 
the  return  does  not  show,  and  the  record  does  not  state, 
whether  the  pleadings  before  the  justice  were  written 
or  oral,  it  will  be  presumed  that  they  were  oral.®* 

Pleadings  in  justice's  court,  whether  oral  or  written, 
are  treated  with  great  liberality,  and,  when  a  case  is 
appealed  to  the  circuit  court,  it  is  the  general  rule  that 
a  pleading  good  in  justice's  court  is  good  in  the  circuit 
court,®*  especially  where  the  adverse  party  made  no  ob- 
jection to  the  pleading  on  the  trial  in  justice's  court.®^ 
But  if  a  defendant  does  not  plead  to  the  plaintiff's 
declaration  until  the  case  has  reached  the  circuit  court, 
the  rules  of  pleading  in  that  court  are  controlling  as  to 
the  sufficiency  and  necessity  of  notice  of  any  affirma- 
tive or  other  special  defense  rather  than  the  standards 

90  Carver  V.  Smth,  113  Mich.  207.  349;    Whittle    v.    Bailes,    65    Mich. 

91  Bauer  v.  Wasson,  60  Mich.  194.  642 ;    Whelpley    v.    Nash,    46    Mich. 

92  Taylor  v.  Belton,  188  Mich.  25 ;  Chaneey  v.  Skcels,  43  Mich, 
302;  Carmer  v.  Hubbard,  123  Mich.  347;  Hartford  v.  Holmes,  3  Mich. 
333.  460;      Carmer      v.      Hubbard,      123 

93  Moore  v.  Hansen,  75  Mich.  564.  Mich.    333;     Page    v.    Mitchell,    13 

94  Kerr  V.  Bennett,  109  Mich.  546.  Mich.    63;    Comstock    v.    Howd,    15 

95  Anderson  Forge  &  Machine  Co.  Mich.  237;  Josselyn  v.  McAllister, 
V.  Sterling  Motor  Co.,  201  Mich.  22  Mich.  300;  Thompson  v.  Ells- 
429;  Carver  v.  Bieleke,  177  Mich.  worth,  39  Mich.  719;  Watkins  v. 
406;  Bradshaw  v.  McLoughlin,  39  Ford,  69  Mich.  357;  Smith  v.  Dodge, 
Mich.  480;  Daniels  v.  Clegg,  28  37  Mich.  354;  Eddy  v.  Maushaun, 
Mich.  32;  Lynch  v.  Craney,  95  Mich.  42  Mich.  532;  Kinyon  v.  Fowler,  10 
199;  Jenks  v.  Brown,  38  Mich.  653;  Mich.  16;  Smoke  v.  Jones,  35  Mich. 
Soper  v.  Mills,  50  Mich.  75;   Apple-  409. 

baum   v.   Goldman,   155   Mich,    369:  96  Chicago    Bldg.    &    Mfg.    Co.    v. 

Hubbard    v.    Freiberger,    133    Mich.  Yell,  129  Mich.  517;   Taylor  v.  Bel- 

139;  Fletcher  v.  Bradford,  45  Mich  ton,    188   Mich.   302;    Millspaugh    v. 
1  Abbott— 69 


1090  Justices  of  the  Peace  §  62 

applied  to  pleadings  in  justice's  court.*'''  When  the 
pleadings  are  oral,  the  return  of  the  justice  is  the  means 
by  which  their  nature  is  determined  in  the  circuit  court.** 
It  is  proper  to  permit  a  bill  of  particulars  to  be  filed 
for  a  larger  amount  than  the  one  filed  in  the  justice's 
court,  where  the  amount  claimed  in  the  suit  was  no 
greater;  and  in  such  case,  it  is  not  proper  to  give  de- 
fendant time  to  file  a  set-off  except  on  payment  of  costs.** 

§  63.  Amendments. 

Appeals  are  often  taken  in  cases  where  no  issue  was 
joined  before  the  justice,  and  in  such  cases,  before  a 
trial  can  be  had  upon  the  merits,  a  plea  to  the  declara- 
tion must  be  filed,  and  for  this  purpose  an  order  must  be 
first  obtained  on  special  motion  to  the  court.  An  order 
for  that  purpose  is  usually  entered  by  consent,  the  neces- 
sity therefor  appearing  upon  the  face  of  the  justice's 
return,  and  no  ground  generally  existing  for  opposing 
it.  But  it  also  often  occurs  that,  where  an  issue  was 
joined  before  the  justice,  the  pleadings  are  so  informal 
on  one  side,  or  on  both  sides,  that  new  pleadings  are 
necessary  to  clearly  embrace  the  cause  of  action,  or  the 
precise  nature  of  the  defense.  In  such  cases  amend- 
ments are  freely  allowed  by  the  court,  such  terms  as  ap- 
pear reasonable  being  imposed,  and  the  parties  being- 
confined  to  the  matters  in  controversy  in  the  court  be- 
low. The  declaration  cannot  be  amended  in  the  circuit 
court  so  as  to  change  the  issues  joined  before  the  jus- 
tice,^ but  formal  amendments  not  changing  the  issues 

Sehultz,   180   Mich.   ^lO;    Carmer   v.  99  McDonald    v.    Weir,    76    Mich. 

Hubbard,  12.3  Mich.  .'JSB.  24'A.     See   also   Holser  v.   Skae,  169 

97  Ward   v.   Reed,   134   Mich.   392.       Mich.  484. 

See  Dattner  v.  Weisz,  198  Mich.  367.  1  Graham    v.    Langston,    65    Mich, 

as  to  allowing  notice  of  special  de-  45;  Loranger  v.  Davidson,  110  Mich, 

fense  to  be  set  up  for  first  time  in  605.      Compare   Connell    v.    McNett, 

circuit   court.  109  Mich.  329. 

98  Aj)plebaum     v.     Goldman,     155 
Mich.  369. 


§  63  Justices  of  the  Peace  1091 

are  proper.^  The  power  of  the  circuit  court  to  allow 
amendments  to  the  pleadings  and  the  filing  of  new  plead- 
ings must  always  be  considered  in  view  of  the  peculiar 
jurisdiction  which  the  court  has  in  appeal  cases,  which, 
as  has  been  observed,  is  no  more  extensive  than  that 
possessed  by  the  justice  of  the  peace,  and  in  view  also 
of  the  principle,  already  alluded  to,  that  the  case  in 
the  appellate  court  is  the  same  case  which,  prior  to  tlio 
appeal,  was  in  the  justice's  court.  Such  power  of  the 
appellate  court,  therefore,  is  not  an  unlimited  power  to 
allow  amendments  and  the  filing  of  new  pleadings,  but 
is  always  subject  to  the  limitation  that  the  cause  of 
action  or  the  ground  of  defense  as  set  forth  in  the  plead- 
ings in  the  justice's  court  cannot  be  enlarged  in  the 
appellate  court,^  and  that  the  issue  made  before  the  jus- 
tice cannot  be  substantially  changed.*  Thus,  no  amend- 
ment of  the  plaintitf's  declaration  is  warranted  which 
has  the  effect  of  introducing  a  new  cause  of  action  or  of 
so  modifying  the  plaintiff's  claim  as  would  have  ousted 
the  justice  of  jurisdiction  if  made  in  the  justice's  court;  ^ 
but  amendments  which  merely  effect  a  fuller  statement 
of  the  plaintiff's  cause  of  action  than  was  contained  in 
the  declaration  in  justice's  court  are  properly  allowed.® 

2  Ovid    Tp.    V.    Haire,    133    Mich.  585;    Fowler    v.    Hyland,    48    Mich. 

353;    Farnam    v.    Doyle,    128    Mich.  179;   Graham  v.  Langston,  65  Mich. 

696;    Canal   St.   Gravel  Eoad   Co.   v.  45;    Bureau    v.    Marshall,    55    Mich. 

Paas,    95    Mich.    372;     Vreeland    v.  234;     Loranger     v.     Davidson,     110 

Locckner,  99  Mich.  93.  Mich.  605 ;  Frohlich  v.  Graulich,  113 

SEverhard    v.    Dodge    Bros.,    202  Mich.  65;   Cross  v.  Eaton,  48  Mich. 

Mifh.  48;   Cross  v.  Eaton,  48  Mich.  184. 

184;    Canal   St.  Gravel  Road   Co.   v.  6  Evers    v.    Sager,    28    Mich.    47; 

Paas,  95  Mich.  372;   Connell  v.  Mc-  Everhard  v.  Dodge  Bros.,  202  Mich. 

Nett,   109   Mich.   329.  48. 

Amendment    to   show   that   action  6  Canal    St.    Gravel    Road    Co.    v. 

was   in   plaintiff's    name   as   trustee  Paas,     95     Mich.     372;     Zeigler    v. 

for  the  insurer  which  had  paid  the  Henry,   77    Mich.   480;    Vreeland   v. 

loss  was  held  imj)roper  in  Everhard  Loeckner,    99    Mich.    93;     Hoyt    v. 

v.  Dodge  Bros.,  202  Mich.  48.  Wayne     Circuit    Judge,     117    Mich. 

4  Hatzenbuhler  v.  Lewis,  51  Mich.  172;    Snyder    v.    Winsor,    44    Midi. 


1092  Justices  of  the  Peace  §  63 

Also  an  amendment  of  the  declaration  by  the  addition 
of  a  new  count,  which,  however,  tenders  no  new  issue 
and  merely  states  matter  already  covered  in  the  original 
declaration,  would  work  no  prejudice ; '''  and  a  declara- 
tion on  the  common  counts  in  assumpsit  may  be  amended 
so  as  to  show  that  the  plaintiff  claims  as  assignee,*  but 
not  by  adding  a  special  count  for  the  refusal  of  the  de- 
fendant to  accept  and  pay  for  property  or  for  the  serv- 
ices of  the  plaintiff,®  because  this  would  introduce  a  new 
and  different  cause  of  action.  So,  also,  where  a  suit 
was  commenced  in  the  name  of  two  plaintiffs  as  co- 
partners, one  of  whom  was  dead  when  the  suit  was  com- 
menced, the  other  plaintiff  may  be  permitted  to  amend 
his  declaration  in  the  appellate  court  so  to  declare  as 
surviving  partner.^''  So,  also,  a  bill  of  particulars  may 
be  amended  even  by  adding  new  items,  where  the  items 
added  are  within  the  declaration  or  notice  of  set-off  or 
recoupment." 

The  defendant  cannot  be  allowed  in  the  appellate 
court  to  amend  his  plea  so  as  to  introduce  a  new  ground 
of  defense.^^  Thus,  in  an  action  for  trespass  to  land, 
the  defendant  cannot  be  allowed  to  amend  his  plea  of 

140;  Webster  v.  Williams,  69  Mich.  On  third  trial  of  case,  refusal  to 
135;  Thompson  v.  W.  W.  Kimball  permit  amendment  of  bill  of  par- 
Co.,  190  Mich.  579.  tieulars   was   upheld  in    Bamlet   Ke- 

7  Kennedy    v.    Brown,    50    Mich.  alty  Co.  v.  Doff,  183  Mich.  694. 
336;  Holser  v.  Skae,  169  Mich.  484.  12  Naf tzker   v.    Lantz,    137    Mich. 

8  Donovan  v.  Halsey  Fire  Engine  441. 

Co.,    58    Mich.   38;    Worden   Grocer  As  to   discretion,   on  appeal  from 

Co.    V.    Blanding,    161    Mich.    254;  default   judgment,   in   allowing  plea 

Webster  v.  Williams,  69  Mich.  135;  of  general  issue  to  be  filed  but  de- 

Farnum    v.   Doyle,    128   Mich.    696.  nying  leave  to  file  notice  of  special 

9  Frohlich  v.  Graulieh,  113  Mich.  defenses,  see  Daltner  v.  Weiss,  198 
65;  Loranger  v.  Davidson,  110  Mich.  Mich.   367. 

605.  But  affidavit  denying  execution  of 

10  O  'Connell  v.  Schwanabeck,  76  written  contract  may  be  permitted 
Mich.  517;  Cragin  v.  Gardner,  64  to  be  filed  in  the  circuit  court.  In- 
Mich.  399.  ternational   Text   Book   Co.   v.    Rob- 

11  Connell    v.    McNett,    109   Mich.  erts,  168  Mich.  501. 
329;   Holser  v.  Skae,  169  Mich.  484 


§  65  Justices  of  the  Peace  1093 

the  general  issue  so  as  to  introduce  as  a  new  ground  of 
defense  that  the  title  to  the  locus  in  quo  was  in  himself. 
The  issue  in  the  circuit  court  must  be  substantially  the 
same  as  that  tried  before  the  justice." 

The  matter  of  allowing  amendments  within  the  lim- 
itations indicated  rests  in  the  sound  discretion  of  the 
court. ^* 

§  64.  Admissibility  of  evidence. 

Any  evidence  can  ordinarily  be  introduced  which 
would  have  been  proper  on  the  trial  before  the  justice. 
The  appeal  papers  cannot  be  considered  by  the  jury,^^ 
and  the  return  is  not  evidence. ^^ 

Where  defendant  did  not  appear  generally  before  the 
justice,  but  did  so  appear  in  the  circuit  court  and  file  a 
plea  of  the  general  issue,  the  question  as  to  what  issues 
are  raised  by  such  plea  is  governed  by  the  rules  pre- 
vailing in  circuit  courts  rather  than  those  governing  in 
justices'  courts.^'''  The  rule  of  the  circuit  court  relating 
to  the  proof  admissible  under  the  general  issue  applies 
to  a  suit  tried  in  the  circuit  court  on  appeal  from  a  jus- 
tice." But  it  seems  that  proof  is  permissible  without 
a  plea  to  support  it  where  there  was  no  opportunity  in 
the  justice  court  or  the  circuit  court  to  raise  the  ques- 
tion by  a  plea." 

§  65.  General  appeals  as  confined  to  trial  de  novo. 

If  the  affidavit  for  appeal  is  merely  general  and  does 
not  set  forth  any  specific  objection  to  the  process,  plead- 

13  Bureau    v.    Marshall,    55    Mich.  16  Oekcnfclls  v.  Mocller,  79  Mich. 

234.  314. 

14Boatz    V.    Berg,    51    Mieh.    8;  17  Ward  v.  Reed,  134  Mich.  392. 

Krohn  v.  Wayne  Circuit  Judge,  157  18  R.   K.   Carter  &  Co.  v.   Weber, 

Mich.   185;   Hoyt  v,   Wayne   Circuit  138  Mich.  576. 

Judge,    117    Mich.    172;    Farnam  v.  19  Newton  v.  Principaal,  82  Mich. 

Doyle,  128  Mich.  696;    Naftzker  v.  271. 
Lantz,   137   Mieh.  441. 

15  Richardson    v.    McGoldrick,    43 
Mich.  476. 


1094  Justices  of  the  Peace  §  65 

ings  or  other  proceedings  and  the  decision  of  the  justice 
thereon  which  would  not  be  allowed  to  be  made  on  the 
trial  of  the  appeal,  the  case  will  stand  for  trial  in  the 
appellate  court  simply  on  the  merits  of  the  issue,  with- 
out regard  to  such  objections.^" 

If  the  affidavit  for  appeal  be  special,  setting  forth 
some  objection  or  objections  to  the  process,  pleadings 
or  other  proceedings  and  the  decision  of  the  justice 
thereon  which  would  not  be  allowed  to  be  made  on  the 
trial  of  the  appeal,  a  preliminary  question  is  presented 
to  the  appellate  court  whether,  on  account  of  such  ob- 
jections, there  can  be  any  trial  on  the  merits  of  the  issue 
at  all.  If  it  appears  that  the  objections  are  well  founded, 
the  appellate  court  can  only  reverse  the  judgment  of  the 
justice.  If  not,  the  case  may  then  be  tried  on  the  merits 
in  the  same  manner  as  if  the  affidavit  had  been  merely 
general.  In  other  words,  a  special  appeal  brings  up  the 
case  for  trial  on  the  merits  in  case  the  objections  are 
not  sustained.^^ 

§  66.  Judgment  and  execution. 

On  a  trial  de  novo  the  judgment  of  the  justice  is  not 
reversed  or  affirmed,  but  a  new  and  independent  judg- 
ment is  rendered;  but  the  circuit  court  cannot  render 
any  judgment  which  the  justice's  court  could  not  have 
rendered.^^  Where  defendant  makes  no  defense  in  the 
circuit  court,  on  being  refused  leave  to  file  a  set-off  ex- 
cept on  the  pajTuent  of  costs,  it  is  proper  to  enter  judg- 
ment against  him.^'  The  statute  provides  that  if  an 
appeal  be  dismissed  or  discontinued,  the  court  shall  en- 
ter judgment  for  the  appellee  for  costs. ^*     And  on  the 

20  Chappee  v.  Thomas,  5  Mich.  53.  24  See    §  68,    post.      On    dismissal 

21  See  §§  69,  70,  post.  of   appeal,   judgment   of   justice    of 

22  Cross  V.  Eaton,  48  Mich.  184.  the  peace  is  enforceable.  American 
Costs  on  special  appeal  from  a  jus-  Boat  Co.  v.  St.  Clair  Circuit  Judge, 
tice 's   judgment    are    discretionary.  194   Mich.    146. 

23  McDonald  v.  Weir,  76  Mich.  243. 


§  67  Justices  of  the  Peace  1095 

trial  of  the  appeal,  if  costs  be  awarded  to  either  party, 
such  costs  are  included  in  the  judgment.  Where  plain- 
tiff appeals  but  fails  to  appear  in  the  circuit  court,  the 
judgment  should  be  one  of  nonsuit  or  discontinuance, 
notwithstanding  the  pendency  of  a  claim  of  set-off'.^^ 
Where  plaintiff  appeals  from  a  judgment  in  favor  of  the 
principal  defendant,  it  will  not  bring  up  with  it  pend- 
ing garnishment  proceedings  so  as  to  enable  the  cir- 
cuit court  to  render  judgment  against  the  garnishee  de- 
fendant in  connection  with  a  judgment  for  plaintiff'.^® 
Where  judgment  in  replevin  is  rendered  for  defendant 
for  a  return  of  the  property  in  justice 's  court,  the  circuit 
court  on  appeal,  if  it  finds  for  defendant,  may  give  him 
judgment  for  the  value  of  the  property  at  the  com- 
mencement of  the  suit  if  he  waives  a  return.^''' 

§  67.  Against  sureties  on  appeal  bonds. 

It  is  provided  by  statute  that,  in  all  cases  where  judg- 
ment is  rendered  against  the  appellant,  judgment  may, 
on  motion  of  the  appellee  made  before  judgment,  be  en- 
tered against  both  the  appellant  and  surety  and  be  col- 
lected on  execution  against  them  as  in  ordinary  cases  of 
judgment  against  two  or  more.'^^  And  where  all  of  sev- 
eral defendants,  or  any  two  or  more  of  them,  have  ap- 
pealed a  cause  in  which  they  are  joint  defendants  and 
have  filed  a  bond  on  appeal,  and,  on  the  trial  in  the  cir- 
cuit court,  a  verdict  is  rendered  for  one  or  more  of  the 
defendants  so  appealing,  the  surety  or  sureties  on  the 
appeal  bond  will  not  be  released  from  liability  on  the 

25  People  V.  Judge  of  Wayne  Cir-  valid.     Chappee  v.  Thomas,  5  Mich, 
cuit  Court,  22  Mich.  408.  53.     See  also  Mitchell  v.  Shuert,  17 

26  Erickson  v.  Duluth,  S.  S.  &  A.  Mich.   65,  and   Roberts   v.   Lyon,  79 
Ey.  Co.,  105  Mich.  415.     .  Mich.  25. 

27  McCabe  v.  Loonsfoot,  119  Mich.  .Judgment     cannot     be     rendered 
323.  against   surety   for   more    than   pen- 

28Jud.    Act,    ch.    22,    §5;    Comp.      alty   of   bond.     Vreeland   v.   Loeck- 
Laws  1915,  §  12795.  ner,  99  Mich.  93. 

This  statute  has  been  held  to  be 


10f)6  Justices  of  the  Peace  §  67 

bond  by  reason  of  such  verdict,  but  judgment  will  enter 
against  liim  or  them  as  well  as  against  the  defendant 
or  defendants  against  whom  the  verdict  is  rendered.''^ 
The  appellee,  however,  in  whose  favor  a  judgment  has 
been  rendered  cannot  prosecute  the  bond  or  recognizance 
given  on  an  appeal  which  has  been  dismissed  or  discon- 
tinued until  an  execution  on  the  judgment  ai)pealed 
from  has  been  returned  that  sufficient  goods  and  chat- 
tels of  the  appellant  cannot  be  found  to  satisfy  it.^" 

A  circuit  judge  has  no  power  to  extend  the  liability 
of  a  surety  in  a  bond  executed  on  an  appeal  from  jus- 
tice's court  by  a  stay  of  execution  made  for  that  express 
purpose  and  upon  his  own  motion.^^  The  fact  that  the 
appeal  is  dismissed  on  motion  of  the  appellee  because 
the  bond  was  insufficient  in  amount  does  not  estop  him 
from  suing  on  the  bond.^^  The  sureties  on  the  appeal 
bond  are  discharged  by  a  stipulation  permitting  an 
amendment  of  the  pleadings  in  the  circuit  court  so  as  to 
set  up  a  new  cause  of  action,  where  acted  upon.^^  The 
neglect  of  the  justice  to  make  return  to  the  circuit  within 
the  statutory  period  does  not  prevent  recovery  on  the 
bond.^*  An  action  of  debt  lies  upon  the  bond  where  the 
appeal  released  an  attachment  levy  or  delayed  the  levy 
of  execution,  and  the  judgment  in  the  main  suit  cannot 
be  collaterally  attacked  therein.^*  Where  a  joint  judg- 
ment is  rendered  against  two,  and  they  execute  a  joint 
appeal  bond,  and  judgment  is  rendered  in  the  circuit 
court  against  one  and  in  favor  of  the  otlier,  the  sureties 
are  not  liable. ^^    A  circuit  judge  has  no  power  to  extend 

29  Jud.  Act,  ch.  22,  §6;  Comp.  requisite  to  an  action  on  tlie  bond. 
Laws  1915,  §  12796.  Nowlin  v.  Tibbits,  44  Mich.  77. 

30  Jud.  Act,  ch.  78,  §21;  Comp.  31  Gildersleeve  v.  Adsit,  97  Mich. 
Laws  1915,  §  14421.                                     606. 

But  an  effort  to  collect  the  judg-  32  Haseall  v.  Brooks,  105  Mich.  383. 

ment  from  real  estate  by  causing  a  83  Evers  v.   Sager,  28  Mich.  47. 

transcript  to  be  filed  in  the  circuit  34  Nowlin  v.  Tibbits,  44  Mich.  77. 

court  and  an  execution  to  issue  from  36  Bushey  v.  Raths,  45  Mich.  181. 

there,  is  not,  in  such  a  case,  a  pre-  86  Post  v.  Shafer,  63  Mich.  85. 


§  68  Justices  of  the  Peace  1097 

the  liability  of  a  surety  on  a  bond  by  a  stay  of  execution 
made  for  that  express  purpose  on  his  own  motion. ^'^ 

Form  of  Ck)unt  on  Bond  on  Appeal  from  Justice  of  tlie  Peace  to  Circuit 

Court 

The  plaintiff  says: 

1.  That  the  said  defendants  heretofore,  to  wit,  on at   ,  by 

their  certain  writing  obligatory,  sealed  with  their  respective  seals,  and 
shown  to  the  court  now  here,  the  date  whereof  is  the  day  and  year  aforesaid, 
a  copy  of   which   is   hereto   annexed,   acknowledged   themselves  to   be  held 

and  firmly  bound  unto  the  said  plaintiff  in  the  sum  of dollars,  to 

be  paid  to  the  said  plaintiff,  or  to  his  certain  attorney,  executors,  adminis- 
trators or  assigns.  2.  That  said  writing  obligatory  was  and  is  subject 
to    a   certain    condition    thereunder    written,    whereby,    after    reciting   that 

judgment  was  rendered   on   the    day  of    ,  A.   D ,   by 

J.  P.,  a  justice  of  the  peace  for  the  township  of   ,  in  the  county  of 

,  in  favor  of  the  said  A.  B.,  as  plaintiff,  and  against  the  said  C.  D., 

as  defendant,  for  the  sum  of dollars,  damages,  and   dollars, 

costs  of  suit,  and  that  the  said  C.  D.  had  appealed  therefrom  to  the  cir- 
cuit court  for  the  county  of ,  it  is  provided  that,  if  the  said  C  D. 

should  prosecute  his  said  appeal  with  all  due  diligence  to  a  decision  in 
the  circuit  court  last  aforesaid,  and,  if  a  judgment  should  be  rendered 
against  him  in  the  said  circuit  court,  if  he  should  pay  the  amount  of  such 
judgment,  including  all  costs,  with  interest  thereon,  and,  if  the  said  appeal 
should  be  discontinued  or  dismissed,  if  the  said  C.  D.  should  pay  the 
amount  of  said  judgment  rendered  against  him  in  justice's  court,  in- 
cluding all  costs,  with  interest  thereon,  then  said  writing  obligatory  was 
to  be  void,  otherwise  to  remain  in  full  force  and  effect.     3.  That,  in  the 

term  of  said  circuit  court  appointed  to  be  held  on ,  to  wit,  on , 

the  said  plaintiff  recovered  a  judgment  in  said  court  in  said  appealed  suit 

against  the  said  C.  D.  for  the  sum  of dollars,  damages,  and 

dollars,  costs  of  suit.  4.  That  the  said  C  D.  has  not,  although  requested 
so  to  do,  paid  the  amount  of  said  judgment,  so  recovered  in  the  said 
appealed  suit  in  said  last-mentioned  court  by  the  said  plaintiff,  or  any  part 
thereof.  5.  That  the  said  defendants,  although  often  requested  so  to  do, 
"have  not  as  yet  paid  the  said  sum  of  money  in  said  writing  obligatory 
mentioned,  or  any  part  thereof,  to  the  said  plaintiff. 

(The  assignment  of  the  breach  will  be  varied  according  to   the  fact.) 

§68.  Costs. 

In  all  cases  ''heard  and  determined"  on  apjieal,  the 
•costs,  or  such  part  thereof  as  to  the  court  shall  seem  just, 

37  Gilderslreve     v.     Kent     Circuit 
Judge,  97  Mich.  606. 


1098 


Justices  of  the  Peace 


§68 


may  be  awarded  to  either  party,  as  the  court  may  deem 
just  and  right  between  the  parties,  in  view  of  the  par- 
ticuUn'  circumstances  of  each  case.^*  This  statute  does 
not  apply,  however,  where  phiintiff  has  discontinued 
after  the  case  has  been  sent  back  to  the  circuit  for  a  new 
trial  upon  a  reversal  in  defendant's  favor,  but  in  such 
case  defendant  is  entitled  to  costs  as  a  matter  of  right.** 
The  discretion  as  to  allowing  costs  is  to  be  exercised  in 
view  of  all  the  facts,  and  only  by  the  judge  trying  the 
appeal  in  tlie  circuit  court;"  and  his  discretion  will  not 
be  reviewed  by  the  supreme  court.*^  If  an  appeal  is  dis- 
missed or  discontinued,  the  court  will  enter  judgment  in 
favor  of  the  appellee  for  costs.** 

B.  Special  Appeals 

§  69.  Nature  of. 

A  special  appeal  is  in  the  nature  of  a  certiorari,**  and 
obtains  a  review  of  jurisdictional  questions  only,**  with- 


38Ju(l.  Act,  eh.  47,  §4;  Comp. 
Laws  1915,  §  13685. 

Statute  providing  that  in  certain 
actions  no  more  costs  than  damages 
shall  be  recovered,  where  less  than 
fifty  dollars  is  recovered,  does  not 
apply  to  appeal  cases  in  the  circuit 
court.     Evers  v.  Sager,  28  Mich.  52. 

Costs  on  special  appeal  from  a 
justice's  judgment  are  discretion- 
ary.    Sager  v.  Shiitts,  53  Mich.  116. 

The  statutory  discretion  as  to 
awarding  costs  given  to  circuit 
courts  on  appeals,  cannot  be  af- 
fected by  a  local  rule  of  court  not 
to  allow  them  in  certain  cases. 
Voigt  Brewing  Co.  v.  Wayne  Circuit 
Judge,  108  Mich.  356. 

On  appeal  in  the  circuit  court,  the 
fee  for  the  trial  of  an  issue  of  fact 
in  assumpsit  is  ten  dollars.  Beem 
V.  Newaygo  Circuit  Judge,  97  Mich. 
491. 


39  Sherman  v.  Washtenaw  Circuit 
Judge,  52  Mich.  474. 

40  Steinhauser  v.  Wayne  Circuit 
Judge,  42  Mich.  463. 

41  Hewitt  V.  Ingham  Circuit 
Judge,  44  Mich.  153. 

42Jud.  Act,  ch.  78,  §19;  Comp. 
Laws  1915,  §14419;  Swegles  v. 
Wayne  Circuit  Judge,  110  Mich. 
631. 

On  an  appeal  being  dismissed  or 
discontinued  and  a  certified  copy  of 
the  order  of  dismissal  or  discontinu- 
ance being  served  on  the  justice,  he 
may  proceed  in  the  cause  as  if  no 
appeal  had  been  made.  Jud.  Act, 
ch.  78,  §20;  Comp.  Laws  1915, 
§  14420. 

43  Chappee  v.  Thomas,  5  Mich.  53, 
56. 

44  See  §  70,  post. 


§  70  Justices  op  the  Peace  1099 

out  a  trial  de  novo,  unless  there  is  also  a  general  appeal. 
The  latter  obtains  a  trial  on  the  merits  de  novo  and  noth- 
ing else.  Questions  of  jurisdiction,  including  any  mat- 
ters connected  with  the  process  or  any  questions  arising 
upon  it  before  the  justice,  cannot  be  reviewed  on  a  gen- 
eral appeal."  If  a  special  and  a  general  appeal  are  com- 
bined, the  circuit  court  first  considers  the  special  appeal 
and  if  it  is  sustained  of  course  there  is  no  necessity  for  a 
trial  of  the  general  appeal;  but  if  the  special  appeal  is 
not  sustained,  the  appellant  may  then  fall  back  on  his 
general  appeal  if  he  so  desires  and  have  a  retrial  on  the 
merits.*^ 

§  70.  When  proper. 

By  statute,  in  case  there  is  any  objection  "to  the  proc- 
ess, pleadings  or  other  proceedings,  and  to  the  decision 
of  the  justice  thereon,  which  would  not  be  allowed  to  be 
'made  on  the  trial  of  the  appeal,  the  same  may  be  set  forth 
specifically  in  the  affidavit."*'  This  is  called  a  special 
appeal.  In  such  case  the  justice,  in  addition  to  the  par- 
ticulars required  in  a  return  on  general  appeal,  must 
make  "a  full  and  complete  return  as  to  all  matters  stated 
and  set  forth  in  such  affidavit"  and  is  required  to  return 
"copies  of  all  processes,  returns,  pleadings  and  affidavits 
upon  which  any  process  issued  or  motion  was  made  and 
so  much  of  the  evidence  and  proceedings  as  may  be  neces- 
sary fully  to  exhibit  the  questions,  motions  and  decisions 
made  and  presented  in  such  cause.  "*^  Where  the  juris- 
diction  of  the  justice  is  attacked,  a  special  appeal  is 

45  Chappce  v.  Thomas,  5  Mich.  53,       iiient  and  lience  cannot  be  reviewed 
56.  on  writ  of  error.     Dodge  v.  Nichols, 

46  Lyniburner     v.     Jenkinson,     50       i;')6  Mich.  28. 

Mich.    488;    Fowler    y.    Hyland,    48  47  Jud.    Act,    ch.    78,    §2;    Comp. 

Mich.  179.  Laws  1915,  §  14402. 

The   overruling   of   the   objections  48  Jud.   Act,   ch.   78,    §  12 ;    Comji. 

and  requiring  the  case  to  be  tried  Laws  1915,  §  14412. 
on   the   merits   is   not   a   final   judg- 


1100 


Justices  of  the  Peace 


70 


proper.*^  So  the  objection  that  plaintiff's  attorney  did 
not  prove  his  authority  is  properly  taken  by  special  ap- 
peal.^" But  questions  not  relating  to  jurisdiction  cannot 
be  reviewed  by  special  appeal."  For  instance,  errors  of 
fact,^^  mere  irregularities  in  the  proceedings,^^  alleged 
error  in  admitting  or  rejecting  evidence,^*  rulings  as  to 
the  sufficiency  of  pleadings,^^  the  allowance  of  an  amend- 
ment to  pleadings,^^  or  the  action  of  the  justice  in  refus- 
ing to  summon  a  second  jury  on  the  disagreement  of  the 
first  one  and  in  proceeding  to  hear  and  determine  the 
case  without  a  juiy,^'  and  the  like  are  not  reviewable  on 
a  special  appeal.  Where  a  defect  of  jurisdiction  appears 
of  record,  it  is  reviewable  on  special  appeal  although  the 
point  was  not  distinctly  made  before  the  justice  of  tlie 
peace;  ^^  but  the  statute  plainly  limits  the  questions  to 


49  Wright  v.  Russell,  19  Mich. 
346;  Dcitz  v.  Groesbeek,  32  Mich. 
303;  Fowler  v.  Hyland,  48  Mich. 
179;  Eosevelt  v.  Hanold,  65  Mich. 
414. 

50  Woodbridge  v.  Robinson,  49 
Mich.  228. 

51  McGraw  v.  Sturgeon,  29  Mich. 
426;  Dalton  v.  Laudahn,  30  Mich. 
349;  Dcitz  v.  Groesbeek,  32 
Mich.  303 ;  Benjamin  v.  Dodge,  50 
Mich.  41;  Stevens  v.  Harris,  99 
Mich.  230;  Maxwell  v.  Deens,  46 
Mich.  35;  Rock  Island  Plow  Co.  v. 
Smith,  162  Mich.  180. 

52  Lymburner  v.  Jenkinson,  50 
Mich.  488,  holding,  however,  that  it 
was  proper  to  overrule  the  special 
appeal  and  allow  the  case  to  stand 
for  hearing  on  the  merits. 

63  Deitz  v.  Groesbeek,  32  Mich. 
303. 

54All>ert  V.  Sutton,  28  Mich.  2; 
Webster  v.  Williams,  69  Mich.  135; 
Manhard  v.  Schott.  37  Mich.  234. 

A  special  appeal  does  not   lie  to 


review  errors  of  a  justice  in  admit- 
ting evidence  not  competent  under 
the  declaration,  because  such  objec- 
tion would  be  available  on  the  trial 
in  the  circuit  court.  Albert  v.  Sut- 
ton, 28  Mich.  2;  Dalton  v.  Laudahn, 
30  Mich.  349. 

55  Stevens  v.  Harris,  99  Mich.  230. 
And  see  Olson  v.  Muskegon  Circuit 
Judge,  49  Mich.  85. 

56  Webster  v.  W^illiams,  69  Mich. 
135. 

57  McGraw  v.  Sturgeon,  29  Mich. 
426. 

58  E.  S.  Knowles  &  Son  v.  Cava 
naugh,  144  Mich.  260;  Wright  v. 
Russell,  19  Mich.  346. 

On  a  special  appeal  the  appellant 
is  not  confined  to  the  objections 
made  before  the  justice,  but  it  is 
sufficient  if  his  objections  are  set 
forth  in  the  affidavit  for  appeal ;  and 
if  the  objection  is  one  which  goes  to 
the  jurisdiction,  the  party  is  not 
obliged  to  appear  before  the  justice 
to  make  it,  but  may  bring  it  before 


§  72  Justices  of  the  Peace  1101 

be  reviewed  to  those  actually  decided  by  the  justice  or 
reasonably  involved  in  his  action.^^  Furthermore  ques- 
tions relating  to  the  jurisdiction  cannot  be  considered 
where  the  objections  have  in  any  manner  been  waived.^" 
A  special  appeal  for  want  of  due  service  of  summons  will 
not  be  favored,  where  the  summons  was  actually  brought 
to  respondent's  attention  in  due  season." 

§  71.  Affidavit. 

The  affidavit  for  a  special  appeal  must  be  specific  in  its 
statements  of  grounds  of  error;  ®^  and  allegations  of  error 
of  want  of  jurisdiction  over  the  persons  of  defendants 
and  that  the  justice  had  no  jurisdiction  to  render  judg- 
ment are  too  general.^^  The  affidavit  is  not  evidence  for 
any  other  purpose  than  to  secure  a  return.®* 

§72.  Return. 

If  the  affidavit  for  the  appeal  specially  set  forth  any 
objection  to  the  process,  pleadings,  or  other  proceedings, 
and  the  decision  of  the  justice  thereon,  as  authorized  by 
the  statute,  the  justice  is  required,  in  addition  to  the  other 
particulars  required  to  be  returned  by  him,  to  make  a  full 
and  complete  return  as  to  all  matters  so  specially  set 
forth  in  such  affidavit,  and  also  copies  of  all  processes, 
returns,  pleadings,  and  affidavits  upon  which  any  process 
was  issued  or  motion  was  made,  and  so  much  of  the  evi- 
dence and  proceedings  as  may  be  necessary  fully  to  ex- 
hibit the  questions,  motions,  and  decisions  made  and 
presented  in  such  cause.®®    The  return  to  a  special  appeal 

the   cin.'uit   court,   either  by   special  61  Lymburnor     v.     Jenkinson,     50 

appeal   or  by  certiorari.  Wright  v.  Mich.  488. 

Eussell,  19  Mich.  346.  62  Osborne   v.  Osborne,   156  Mich. 

59  Courtis   V.   Garrison,  148   Mich.  413. 

226;    Lymburner    v.    Jenkinson,    50  63  Osborne   v.  Osborne,   156  Mich. 

Mich.    488;    Maxwell    v.    Deens,    46  413. 

Mich.  35.    See  also  Peterson  V.  Fow-  64  Lymburner     v.     Jenkinson,     50 

ler,  76  Mich.  258.  Mich.  488. 

60  Peterson    v.    Fowler,    76    Mich.  66  Jud.    Act,    eh.     78,     §§2,    12; 
258;  Maxwell  v.  Deens,  46  Mich.  35.  Conip.  Laws  1915,  §§  14402,  14412. 


1102  Justices  of  the  Peace  §  72 

is  assumed  to  contain  all  that  took  place  before  the  jus- 
tice,®®  and  must  be  taken  as  tiiie  as  to  all  questions  prop- 
erly raised  by  the  appeal,^"''  except  that  it  is  not  conclu- 
sive as  against  the  necessary  docket  entries.^'  It  will  not 
be  presumed  that  the  justice  exceeded  his  jurisdiction 
unless  the  return  so  shows.^' 

If  the  return  to  a  special  appeal  is  defective,  a  further 
return  should  be  required^"  A  motion  to  require  an 
additional  return  in  order  to  show  that  an  objection  was 
made  to  the  sufficiency  of  the  declaration,  is  properly  re- 
fused, where  the  objection  fails  to  specify  the  defect  re- 
lied on  in  the  circuit  court.'^^ 

§  73.  Hearing  and  what  will  be  reviewed. 

In  case  of  a  special  appeal  it  brings  up  the  whole  case, 
embracing  a  general  as  well  as  a  special  appeal,  so  that, 
if  the  objections  brought  before  the  court  by  the  latter 
are  overruled,  the  appellant  may  have  a  trial  upon  the 
merits  of  the  case.  But  as  the  decision  of  the  questions 
raised  upon  such  objections  may,  if  the  objections  are 
held  to  be  valid,  dispose  of  the  whole  case,  they  should 
be  brought  on  for  hearing  before  the  trial  of  the  issue  of 
fact.  These  objections  are  in  the  nature  of  a  motion  to 
dismiss  or  quash  the  proceedings  in  the  suit,  on  account 
of  some  defect  or  irregularity  in  the  process,  pleadings 
or  other  proceedings  before  the  justice,  which  were  in- 
sisted upon  in  the  court  below,  and  decided  against  the 
appellant,  and  which  would  not  be  allowed  to  be  made  on 
the  trial  upon  a  general  appeal  only.  Where  defendant 
did  not  object  before  the  justice  to  the  failure  to  file  a 

This   applies   only   where    the   ap-  67  Kidd    v.    Dougherty,    59    Micli. 

peal    is    not    only    upon    the   merits,  240;    Hinkle    v.    Collins,    113    Mich, 

but  also  upon  matters  pertaining  to  105,  further  return, 

the  process,  pleadings  or  other  jjro-  68  Hodges  v.  Bagg,  81  Mich.  243. 

ceedings   occurring   during  the    pro-  69  Barker  v.  Wheeler,  44  Mich.  176. 

gress  of  the  case  before  the  justice.  70  Maxwell  v.  Deens,  46  Mich.  35. 

Chappee  v.  Thomas,  5  Mich.  53.  VI  Carmer  v.  Hubbard,   123   Mich. 

66  Maxwell  v.  Deens,  46  Mich.  35.  333. 


§  73  Justices  of  the  Peace  1103 

declaration,  he  waives  such  filing,  and  the  circuit  court 
should  permit  a  declaration  to  be  filed. '^  But  an  amend- 
ment of  process,  necessary  to  validate  the  judgment  in 
the  circuit  court,  will  not  be  allowed  therein,  on  special 
appeal,  where  no  request  was  made  for  an  amendment  in 
the  justice's  court.''^^ 

The  only  objections  which  will  be  considered  upon  a 
special  appeal  are  such  as  involve  a  question  of  the  jus- 
tice's jurisdiction  to  hear,  try  and  determine  the  cause. 
Any  other  objection  to  the  action  of  the  justice,  however 
irregular  such  action  may  be,  cannot  be  reviewed  on  spe- 
cial appeal ;  '*  but  the  appellant  is  not  confined  to  such 
objections  as  were  actually  made  by  him  before  the  jus- 
tice. Any  objection  which  goes  to  the  jurisdiction  of  the 
justice,  whether  made  before  him  or  not,  is  available  to 
the  appellant  on  a  special  appeal.  It  is  not  necessary  for 
a  defendant  to  appear  before  the  justice  for  the  purpose 
of  making  such  objections;'''^  but  if  the  defendant, 
whether  his  objections  to  the  jurisdiction  were  actually 
made  before  the  justice  or  not,  pleads  to  the  merits  in- 
stead of  resting  upon  his  objections,  he  thereby  w^aives 
them  and  cannot  thereafter  take  advantage  of  them  upon 
special  appeal.'''^ 

The  rulings  of  the  justice  on  the  trial  upon  questions 

72  Simon  v.  Spiro,  124  Mich.  48-1.  50  Mich.  41;   Maxwell  v.  Deens,  46 

73  E.  S.  Knowles  &  Son  v.  Cava-  Mich.  35;  Webster  v.  Williams,  69 
naugh,  144  Mich.  260,  holding  that  Mich.  135;  Deitz  v.  Groeshack,  32 
statutes  relating  to  amendments   do  Mich.  303. 

not  apply  to  orders  relating  to  ques-  75  Wright     v.     KussoU,    19    Mich, 

tions     properly     raised     by     special  346;    Eosevelt   v.   Hanold,   65   Mich, 

appeal,  but  to  general  appeals  only,  414;  E.  S.  Knowles  &  Son  v.  Cava- 

where  the  case  is  to  be  tried  on  the  naugh,   144  Mich.   260. 

merits  de  novo.  76  Manhard    v.    Sehott,    37    Mich. 

74  McGravv  v.  Sturgeon,  29  Mich.  234 ;  Maxwell  v.  Deens,  46  Mich.  35 ; 
426;  Dalton  v.  Laudahn,  30  Mich.  Knapp  v.  Duclo,  1  Mich.  N.  P.  189; 
349;  Stevens  v.  Harris,  99  Mich.  Peterson  v.  Fowler,  76  Mich.  258; 
230;  Rock  Island  Plow  Co.  v.  Smith,  Stever  v.  Brown,  119  Mich.  196;  Si- 
162  Mich.   180;   Rosevelt  v.  Hanold,  mon  v.  Spiro,  124  Mich.  484. 

65   Mich.  414;    Benjamin    v.   Dodge, 


1104  Justices  of  the  Peace  §  73 

of  evidence  or  the  sufficiency  of  the  pleadings  or  the 
amendment  thereof  cannot  be  reviewed  upon  special  ap- 
peal." The  rulings  of  the  justice  during  a  trial  or  con- 
cerning the  summoning  or  swearing  of  witnesses  cannot 
be  reviewed  upon  special  appeal.'*  Questions  not  either 
actually  decided  by  the  justice  or  reasonably  involved 
in  his  action  cannot  be  reviewed  on  special  appeal,™ 
though  it  is  not  essential  that  the  point  involved  should 
have  been  distinctly  made  before  him.*° 

The  hearing  in  the  circuit  court  upon  the  question  of 
the  jurisdiction  of  the  justice  is  upon  the  case  as  it  was 
in  justice's  court." 

§  74.  Judgment. 

On  a  special  appeal  it  seems  improper  to  render  dis- 
tinct judgments  for  damages  and  costs  on  the  merits,  and 
for  costs  on  the  special  appeal.*'^  On  a  special  appeal, 
where  it  appears  that  the  judgment  was  void,  a  perpetual 
stay  of  proceedings  is  properly  granted;  *'  and  a  reversal 
referring  to  reasons  appearing  in  the  affidavit  for  appeal 
is  not  substantially  different  from  reversal  for  errors  in 
the  action  of  the  justice,  since  the  errors  must  be  averred 
in  the  affidavit.'* 

TJ  Manhard    v.    Schott,    37    Mich.  at  any  stage  of  the  cause,  and  yet  it 

234;   Albert  v.  Sutton,  28  Mich.  2;  cannot   possibly  bear  that   eonstruc- 

Dalton   V.   Laudahn,   30   Mich.    349;  tion." 

Webster  v.  Williams,  69  Mich.  135;  79  Lymburner     v.     Jenkinson,     50 

Stevens  v.  Harris,  99  Mich.  230.  Mich.  488;   Courtis  v.  Garrison,  148 

78McGraw  v.   Sturgeon,  29  Mich.  Mich.    226;    Maxwell    v.    Deens,    36 

426.    In  this  ease,  the  supreme  court  Mich.  35. 

said:   "It  is  not  to  be  denied  that  SOWrig'ht    v.    Eussell,    19    Mich, 

the    statute    concerning    special    ap-  346;  E.  S.  Knowles  &  Son  v.  Cava- 

peals    is    very    loose,    and    that    the  naugh,  144  Mich.  260. 

phrase   'any   objections   to   the   pro-  81  Wells  v.  United  States  Fidelity 

cess,  pleadings  or  other  proceedings,  &  Guaranty  Co.,  160  Mich.   213. 

and     the     decision     of     the     justice  82  Lymburner     v.     Jenkinson,     50 

thereon,  which  would  not  be  allowed  Mich.   488. 

to  be  made  on  the  trial  of  the  ap-  83  Hall  v.  Howard,  39  Mich.  219. 

peal'  is  broad  enough  to  cover  al-  84  Sager  v.  Shutts,  53  Mich.  116. 
most   anything  done  by  the   justice 


f^v. 


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